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CASE 


OF 

♦ 

THE  PROPRIETORS 

OF 

CHARLES  RIVER  BRIDGE 

AGAINST 

THE  PROPRIETORS 

OF 

WARREN  BRIDGE, 

ARGUED  AND  DETERMINED 

IN  THE 

SUPREME  JUDICIAL  COURT 

OF 

MASSACHUSETTS. 


BY  OCTAVIUS  PICKERING, 

COUNSELLOR  AT  LAW. 


BOSTON : 

HILLIARD,  GRAY,  LITTLE,  AND  WILKINS. 


1830. 


CAMBRIDGE  : 

E  W.  METCALF  AJ SD  COMPANY. 


REPORT. 


The  Proprietors  of  Charles  River  Bridge 

against 

The  Proprietors  of  Warren  Bridge  and  others. 

Filing  and  opening  in  the  clerk’s  office  a  deposition  taken  in  a  suit  in  chancery,  is 
equivalent  to  a  publication  in  the  English  practice. 

Notice  that  a  suit  in  chancery  is  brought  to  an  issue  being  given  by  the  plaintiff 
thirty  days  before  the  ensuing  term,  the  case  will  stand  for  a  hearing  at  such  term 
in  its  order  on  the  docket,  like  cases  at  law  ;  the  English  rules  in  chancery  rela¬ 
tive  to  setting  down  a  case  for  hearing  not  having  been  adopted  by  this  Court. 

Whether  suits  in  chancery  are  embraced  by  the  exception  in  the  15th  article  of  the 
declaration  of  rights,  which  article  provides,  “  that  in  all  controversies  concerning 
property,  and  in  all  suits  between  two  or  more  persons,  except  in  cases  in  which  it 
has  heretofore  been  otherwise  Used  and  practised,  the  parties  have  a  right  to  a 
trial  by  a  jury,”  quaere. 

But  if  a  party  to  a  suit  in  chancery  has,  by  virtue  of  that  article,  a  right  to  a  trial 
by  jury,  it  is  only  in  regard  to  controverted  facts  deemed  essential  to  the  fair  and 
full  trial  of  the  case  ;  and  whether  a  fact  proposed  to  be  so  tried  is  essential  or 
not,  is  to  be  determined  by  the  Court. 

If,  upon  inspecting  the  pleadings,  it  appears  that  important  facts  are  asserted  and 
denied,  the  Court,  in  its  discretion,  may  direct  issues  before  a  hearing. 

Where  the  legislature  passed  an  act  granting  additional  privileges  to  a  bridge  corpo¬ 
ration,  and  providing,  “  that  in  consideration  of  the  privileges  so  granted  the  cor¬ 
poration  shall  relinquish  the  additional  toll  on  the  Lord’s  day,  from  and  after  the 
passing  of  this  act,”  it  was  held,  that  this  relinquishment  was  a  condition  subse¬ 
quent,  the  non-performance  of  which  was  a  matter  between  the  government  and 
the  corporation  only,  and  could  not  be  taken  advantage  of  by  a  stranger  to  invali¬ 
date  the  grant. 

If  a  corporation  obtain  an  extension  of  their  charter  by  false  and  colourable  represen¬ 
tations  to  the  legislature,  it  may  be  made  the  ground  of  a  quo  warranto,  but  a  stran¬ 
ger  cannot  take  advantage  of  the  fraud  to  deny  the  validity  of  such  extension. 

The  government  of  the  colony  of  Massachusetts  having  established  a  ferry  between 
Boston  and  Charlestown,  over  Charles  river,  recite,  in  an  ordinance  to  which  are 
affixed  the  dates  of  1636,  1640  and  1642,  that  they  have  given  “  the  revenue  of  the 
ferry”  to  Harvard  College.  At  a  general  court  in  1640,  “  the  ferry  between  Bos¬ 
ton  and  Charlestown  is  granted  to  the  college.”  The  ferry  was  at  that  time  under 
lease.  In  May  1650  the  college  was  incorporated.  In  October  following,  in  an- 


4 


swer  to  the  petition  of  the  president  of  the  college  in  regard  to  “  rectifying  the 
ferry  rent,  which  belongs  to  the  college,  it  is  ordered  that  it  shall  be  in  the  liberty 
and  power  of  the  president,  in  behalf  and  for  the  behoof  of  the  college,  to  dispose 
of  the  ferry  by  lease,  or  otherwise,  making  the  best  and  most  advantage  thereof 
to  his  own  content.”  In  an  order  of  1G54  it  is  said,  *‘  besides  the  profit  of  the 
ferry’  formerly  granted  to  the  college,  which  shall  be  continued,  there  shall  be 
yearly  levied  by  addition  to  the  county  rate,  an  hundred  pounds,  to  be  paid  to  the 
college  treasurer,  and  this  to  continue  during  the  pleasure  of  the  country.  From 
1639  to  1785  the  college  received  the  profits  of  the  ferry;  which,  during  part  of 
the  time  from  1650,  was  under  their  own  mauagement,  and  for  the  rest  of  the  lime  - 
since  that  year  was  leased  by  them  to  tenants.  The  rales  of  toll  were  fixed  by 
the  college,  but  the  legislature  passed  acts  from  time  to  time  for  regulating  the 
ferry’,  in  some  instances  affecting  the  toll,  sometimes  consulting  and  sometimes 
without  consulting  the  college.  By  SI.  1784,  c.  53,  (passed  March  9,  1785,)  enti¬ 
tled,  “An  act  for  incorporating  certain  persons  for  the  purpose  of  building  a 
bridge,  over  Charles  river,  between  Boston  and  Charlestown,”  the  persons  incor¬ 
porated  were  authorized  to  erect  the  bridge  “  in  the  place  where  the  ferry  between 
Boston  and  Charlestown  is  now  kept,”  and  to  receive  toll  for  forty  years  from  the 
day  on  which  the  bridge  should  be  opened  for  passengers  ;  double  toll  to  be  paid 
on  the  Lord's  day.  During  that  term  the  corporation  were  to  pay  the  college  an 
annuity  of  2001.,  and  at  the  end  of  the  term  the  bridge  was  to  “  revert  to  and  be 
the  property  of  the  commonwealth,  saving  to  the  college  a  reasonable  and  annual 
compensation  for  the  annual  income  of  the  ferry,  which  they  might  have  received, 
had  not  said  bridge  been  erected.”  The  bridge  was  opened  for  passengers  on 
June  17,  1786.  The  college  made  no  conveyance  of  the  ferry  by  deed  to  the 
bridge  corporation,  but  the  annuity  was  paid  by  that  corporation  and  received  by 
the  college.  In  1792,  on  an  application  for  authority  to  build  a  bridge  across  the 
same  river  between  Boston  and  Cambridge,  a  committee  of  the  legislature  report¬ 
ed,  that  the  statute  of  1784  was  not  “  an  exclusive  grant  of  the  right  to  build  over 
the  waters  of  that  river ;  ”  which  report  was  accepted,  and  certain  individuals 
were  by  St.  1791,  c.  62,  (passed  March  9,  1792,)  incorporated  for  the  purpose  of 
building  the  West  Boston  bridge,  between  Boston  and  Cambridge,  with  authority 
to  receive  toll  for  forty  years  and  with  the  obligation  to  pay  an  annuity  to  the 
college  :  and  “  whereas  the  erection  of  Charles  river  bridge  was  a  work  of  hazard 
and  public  utility,”  and  the  West  Boston  bridge  might  “  diminish  the  emoluments 
of  Charles  river  bridge,  therefore,  for  the  encouragement  of  enterprise,”  it  was  en¬ 
acted  that  the 'privileges  and  duties  of  the  proprietors  of  Charles  river  bridge 
should  continue  thirty  years  longer,  and  that  in  consideration  of  the  privileges 
in  this  act  granted,  they  should  relinquish  the  additional  toll  on  the  Lord’s  day, 
from  and  after  the  passing  of  this  act.  Soon  afterward  the  proprietors  of  Charles 
river  bridge  ceased  to  demand  the  additional  toll,  and  it  has  not  been  exacted 
since,  and  in  1802  they’  ordered  such  parts  of  the  statute  of  1791  as  concerned 
them,  to  be  entered  on  their  records ;  but  they  did  not  pass  any  express  vote  to 
accept  the  act  until  February  1826,  a  few  months  before  the  expiration  of  the 
term  of  their  original  charter.  They  have  ever  since  continued  to  comply  with 
the  provisions  of  the  two  statutes.  In  1828  (by  St.  1827,  c.  127,)  the  legislature 
incorporated  certain  persons  for  the  purpose  of  building  the  Warren  Bridge  across 
the  same  river,  between  Boston  and  Charlestown.  This  bridge  was  built  in  pur¬ 
suance  of  the  act,  near  to  Charles  river  bridge,  the  distance  between  them  on  the 
Charlestown  shore  being  260  feet  and  on  the  Boston  shore  915  feet,  and  in  conse¬ 
quence  nearly  two  thirds  of  the  toll  were  diverted  from  Charles  river  bridge.  The 
act  of  1827  provided  that  the  Warren  bridge  corporation  should  make  compensa- 


5 


tion  to  any  person  or  corporation  whose  real  estate  should  be  taken  for  the  use  of 
the  bridge,  but  was  silent  in  regard  to  damage  of  any  other  kind.  It  was  held  : — 

By  Morton  J.,  that  by  virtue  of  the  grants  relating  to  the  ferry  and  the  practical 
construction  of  them,  the  college  had  a  permanent  indefeasible  interest  in  the  ferry, 
subject  to  the  regulation  of  the  government ; — by  Putnam  J.,  that  the  college  were 
seised  in  fee  of  the  franchise  ;  and  by  Parker  C.  J.,  that  the  grants  before  1650 
did  not  vest  in  the  college  the  absolute  property  in  the  ferry  itself,  but  only  a 
permanent  right  to  the  profits,  the  government  being  at  first  trustees  of  the  ferry 
for  the  benefit  of  the  college  ;  and  the  trust  being  afterwards  relinquished,  the  col¬ 
lege  thus  became  the  owners  of  the  ferry,  subject  to  the  regulation  of  the  govern¬ 
ment  : — 

By  Parker  C.  J.,  Wilde  J.  and  Morton  J.,  that  the  right  of  the  college  was  not 
transferred  to  the  proprietors  of  Charles  river  bridge  ; — but  by  Wilde  J.,  that  by 
the  statute  of  1784  and  the  acquiescence  of  the  college,  the  ferry  was  extinguish¬ 
ed  ; — and  by  Morton  J.,  that  the  public  exigencies  requiring  it,  the  government 
seized  the  college  right,  (after  providing  a  suitable  indemnity,)  to  enable  them  to 
make  a  compact  by  which  the  public  wants  might  be  satisfied ; — but  by  Putnam  J., 
that  the  college,  for  a  valuable  consideration  paid  by  the  proprietors  of  the  bridge, 
consented  that  they  should  have  the  ferry  during  the  continuance  of  their  char¬ 
ter  : — 

By  Putnam  J„  that  no  other  ferry  could  be  lawfully  erected  by  the  government,  or 
by  an  individual,  so  near  to  the  old  ferry  as  to  draw  away  its  custom,  and  that  a 
ferry  set  up  at  the  place  where  Warren  bridge  is  built,  would  have  been  so  near 
as  to  be  a  nuisance  to  the  old  ferry  ; — by  Parker  C.  J.,  that  the  grant  was  not  of 
an  exclusive  right  along  the  whole  opposite  shores  of  Boston  and  Charlestown, 
neither  was  it  limited  to  the  ferry-ways,  but  it  gave  a  right  to  receive  toll  from  all 
persons,  who,  having  occasion  to  pass  between  Boston  and  Charlestown  over  the 
river,  would  in  the  usual  course  of  travel  cross  at  this  ferry ;  but  that  the  gov¬ 
ernment  had  a  right,  whenever  the  increase  of  population  should  require  it,  to  es¬ 
tablish  another  ferry  between  the  two  towns,  only  providing  for  a  just  compensa¬ 
tion  to  the  proprietors  of  the  old  ferry  according  to  the  value  of  the  property  at 
the  time:  in  order  however  to  give  the  owner  of  an  old  ferry  a  claim  to  compen¬ 
sation,  the  new  one  must  not  merely  be  so  near  as  to  take  away  some  of  the  cus¬ 
tom;  it  must  be  near  in  a  positive  sense  ;  it  must  be  within  the  range  of  the  ex¬ 
clusive  right  of  the  old  one;  which  is  to  be  settled,  in  the  case  of  a  prescriptive 
ferry',  by  proof  of  use,  and  where  a  grant  exists,  by  the  terms  of  the  grant :  — 

By  Parker  C.  J.  and  Wilde  J.,  that  when  the  legislature  authorize  the  establishment 
of  a  bridge  or  ferry  near  an  old  one,  this  is  not  a  taking  of  private  property  for 
public  uses,  within  the  meaning  of  the  10th  article  of  the  declaration  of  rights  cr 
the  fifth  amendment  to  the  constitution  of  the  United  States,  (which  provide 
respectively  that  private  property  shall  not  be  “appropriated”  or  “taken”  for 
public  use,  without  compensation,)  as  the  damages  are  only  consequential;  but  by 
Parker  C.  J.,  by  the  principles  of  our  constitution  and  the  nature  of  our  govern¬ 
ment,  the  legislature  are  prohibited  from  making  a  grant  to  the  necessary  and  es¬ 
sential  injury  of  a  pre-existing  grant,  without  providing  for  a  just  compensa¬ 
tion 

By  Parker  C.  J.  and  Wilde  J.,  that  the  express  acceptance  by  the  proprietors  of 
Charles  river  bridge,  of  the  statute  of  1791,  was  in  due  season,  it  being  before  the 
expiration  of  their  original  charter  and  before  the  grant  to  the  proprietors  of  the 
Warren  bridge  ;  and  further,  that  their  acceptance  might  be  presumed  from  their 
previous  proceedings  and  from  the  statute’s  being  to  their  benefit : — 

By  Parker  C.  J.,  that  the  ceasing,  soon  after  the  enactment  of  the  statute  of  1791,  to 


6 


take  the  additional  toll  and  never  exacting  it  since,  was  a  sufficient  relinquish¬ 
ment  of  it,  without  any  express  vote  : — 

By  Morton  J.,  that  the  contract  between  the  legislature  and  the  proprietors  of 
Charles  river  bridge  contains  no  grant,  express  or  implied,  of  an  exclusive  right 
beyond  the  limits  of  the  bridge  itself,  but  their  right  extends  only  to  taking  toll  of 
such  persons  as  may  choose  to  pass  the  bridge  ;  sp  that  the  statute  of  1827  is  not 
contrary,  either  to  the  constitution  of  this  commonwealth,  as  taking  private  prop¬ 
erty  for  public  use  without  compensation,  or  to  that  of  the  United  States,  as  im¬ 
pairing  the  obligation  of  a  contract: — 

By  JVilde  J.,  that  the  proprietors  of  Charles  river  bridge  did  not  derive,  expressly  or 
by  implication,  from  the  statutes  of  1784  and  1791,  especially  the  latter,  an  exclusive 
right  of  transportation  over  the  river  between  Boston  and  Charlestown  ;  and  that 
the  statute  of  1827  was  not  repugnant  to  the  declaration  of  rights,  for  no  property 
of  those  proprietors  was  taken,  the  damages  sustained  by  them  being  only  conse¬ 
quential,  and  was  not  inconsistent  with  their  rights  under  the  statutes  of  1784 
and  1791,  and  so  was  not  contrary  to  the  constitution  of  the  United  States : — 

By  Putnam  J.,  that  the  proprietors  of  Charles  river  bridge  having  acquired  the  right 
of  the  college  to  the  ferry,  did,  by  virtue  of  the  acts  of  1784  and  1791,  become 
seised  of  an  exclusive  franchise  for  transportation  over  Charles  river  between 
Boston  and  Charlestown  over  their  bridge,  as  extensive  as  the  owners  of  the  ferry 
had  enjoyed  for  transportation  in  boats,  so  that  a  new  ferry  or  bridge  which  would 
have  been  a  nuisance  to  the  old  ferry,  would  be  a  nuisance  to  the  old  bridge  ;  that 
independent  of  the  ferry,  the  statutes  authorizing  the  proprietors  of  Charles  river 
bridge  to  erect  a  toll-bridge,  contains  an  implied  engagement  on  the  part  of  the 
legislature,  not  to  grant  another  bridge  so  near  as  to  draw  asvay  the  toll  from  the 
old  one;  ar.d  that  the  statute  of  1827  is  contrary  to  the  constitution  of  the  United 
States,  inasmuch  as  it  impairs  the  obligation  of  the  grant  previously  made  to  the 
proprietors  of  Charles  river  bridge,  and  contrary  to  the  constitution  of  this  com¬ 
monwealth,  inasmuch  as  it  takes  away  their  property  for  public  uses,  against  their 
consent,  without  compensation,  and  without  provision  for  a  trial  by  a  jury  : — 

By  Parker  C.  J.,  that  the  contract  of  the  government  with  the  proprietors  of  Charles 
river  bridge  was,  that  the  grantees  should  have  a  right  as  extensive  as  the  owners 
of  the  ferry  had,  to  take  toll  from  persons  having  occasion  to  pass  between  Boston 
and  Charlestown,  and  that  this  right  should  not  be  disturbed  or  impaired,  unless 
public  necessity  should  demand  it,  and  in  such  case  the  grantee  should  be  indemni¬ 
fied  ;  and  that  the  statute  of  1827,  in  so  far  as  it  authorizes,  and  by  its  necessary 
operation  occasions,  a  diversion  of  travel  and  toll  from  Charles  river  bridge,  with¬ 
out  providing  for  an  indemnity,  impairs  the  obligation  of  the  contract  with  the 
proprietors,  and  is  contrary  to  the  constitution  of  the  United  States  and  to  the  prin¬ 
ciples  of  the  constitution  of  this  commonwealth. 

This  was  a  bill  praying  for  an  injunction  to  restrain  the 
defendants  from  building  a  bridge,  which  they  had  begun  to 
erect  by  virtue  of  an  act  of  the  legislature,  and  also  from 
suffering  passengers  to  go  over  the  same.  The  facts  alleged 
in  the  bill  were  as  follows  : — That  the  plaintiffs  were  made  a 
corporation  by  an  act  passed  March  9,  1785,  and  were  author¬ 
ized  to  erect  a  bridge  over  a  navigable  river,  called  Charles  Riv¬ 
er,  between  Boston  and  Charlestown,  at  or  near  the  place  w’here 


7 


an  ancient  ferry  was  before  kept;  that  the  bridge  was  designed  to 
accommodate  all  passengers  of  every  description,  during  the  term 
of  forty  years,  on  a  certain  line  of  travel  leading  to  and  from  the 
southerly  part  of  Charlestown  from  and  to  the  northerly  part  of 
Boston,  as  delineated  on  a  plan  annexed  to  the  bill ;  that  by 
the  same  act,  and  for  the  purpose  of  reimbursing  the  money  ex¬ 
pended  in  building  and  supporting  the  bridge,  the  plaintiffs  were 
authorized  to  take,  for  their  sole  benefit,  certain  tolls  of  all  pas¬ 
sengers,  as  specified  in  the  act;  which  tolls  were  to  continue 
forty  years  from  the  day  of  opening  the  bridge  for  passengers. 
That  certain  duties  and  obligations  in  favour  of  the  public  were 
imposed  upon  the  plaintiffs  ;  as  that  the  bridge  should  be  of 
certain  dimensions  and  be  lighted,  as  specified  in  the  act,  and 
that  the  draw  should  be  lifted  without  any  toll,  for  all  vessels 
passing  the  same,  except  in  certain  cases  otherwise  provided 
for.  That  the  proprietors  should  also  pay  annually  to  the  Pres¬ 
ident  and  Fellows  of  Harvard  College,  (who  were  alleged  to  be 
the  former  owners  of  the  ferry,)  666  dollars  67  cents,  during 
said  term  ;  at  the  end  of  which,  the  bridge  should  be  left  in 
good  repair  and  revert  to  the  commonwealth  ;  saving  to  the 
college  a  reasonable  annual  compensation  for  the  annual  income 
of  the  ferry  which  they  might  have  received,  had  not  the  bridge 
been  built.  That  the  plaintiffs  accepted  the  act  of  incorporation 
according  to  its  terms,  and  thereby  a  contract  was  created  be¬ 
tween  the  commonwealth  and  themselves  conformably  to  the 
act.  That  the  President  and  Fellows  of  Harvard  College,  be¬ 
fore  the  passing  of  the  act,  had  become  and  were  the  owners 
of  the  ancient  ferry,  exclusive  of  the  right  of  any  person  or 
corporation  to  maintain  a  ferry  or  other  permanent  method  of 
transporting  by  boats  or  otherwise,  for  hire  or  toll,  any  passen¬ 
gers,  cattle  or  vehicles  travelling  to  and  from  the  southerly  part 
of  Charlestown  from  and  to  the  northerly  part  of  Boston  ;  that 
no  other  ferry  across  the.  river  was  ever  established  or  used  for 
the  travel  of  passengers  between  Boston  and  the  opposite  shore 
of  the  river  ;  and,  that  the  act  of  incorporation  was  passed  with 
the  consent  of  the  President  and  Fellows  of  Harvard  College; 
by  means  whereof  the  plaintiffs  became  the  possessors  and 
grantees  of  the  President  and  Fellows  in  the  ferry,  during  the 


8 


term  of  forty  years,  and  entitled  to  the  exclusive  right  of  erect¬ 
ing  a  bridge  over  the  river,  for  the  use  of  all  persons  going  upon 
the  said  line  of  travel,  to  the  same  extent  and  for  the  same  pur¬ 
pose  to  which  the  right  of  the  ancient  ferry  extended.  That  the 
plaintiffs,  pursuant  to  their  act  of  incorporation,  built  the  bridge, 
and  opened  the  same  for  passengers  on  the  17th  of  June  1786, 
and  have  ever  since  kept  the  same  in  good  repair,  and  in  all 
other  respects  have  performed  the  duties  which  by  the  act  were 
to  be  performed  by  them,  and  that  the  use  of  the  ancient  ferry, 
as  the  same  was  before  used,  has  been  discontinued.  That  by 
another  statute  of  this  commonwealth,  of  March  9,  1792,  for  in¬ 
corporating  certain  persons  to  build  West  Boston  bridge,  so 
called,  leading  from  West  Boston  to  Cambridge,  (which  statute 
was  passed  with  the  consent  of  the  President  and  Fellows  of 
Harvard  College,)  it  was,  among  other  things,  recited,  that  the 
bridge  of  the  plaintiffs  was  a  work  of  hazard  and  public  utility, 
and  that  another  bridge  in  the  place  then  proposed  for  the  West 
Boston  bridge  (which  place  was  higher  up  the  river,  and  dis¬ 
tant  from  the  plaintiffs’  bridge  about  one  mile,  measuring  on 
the  Boston  side  of  the  river,  and  about  two  miles  measuring  on 
the  opposite  shore)  might  diminish  the  emoluments  of  the  plain¬ 
tiffs’  bridge  ;  therefore,  for  the  encouragement  of  enterprize,  it 
was,  among  other  things,  enacted,  that  the  plaintiffs  should  con¬ 
tinue  a  corporation  as  aforesaid  for  the  further  term  of  thirty 
years,  in  addition  to  their  original  term,  making  in  the  whole  the 
term  of  seventy  years,  which  will  expire  on  the  17th  of  June 
1856,  at  which  period  their  bridge  should  revert  to  and  be  sur¬ 
rendered  in  good  repair  to  the  commonwealth  ;  in  consideration 
of  which  additional  grant  the  plaintiffs  should  also  relinquish  the 
additional  toll  originally  authorized  to  be  taken  by  them  on  the 
Lord’s  day.  That  the  plaintiffs  did  accordingly  accept  the  terms 
offered  them  in  the  last  mentioned  act ;  by  reason  whereof  they 
became  entitled  to  the  right  of  keeping  their  bridge  for  the  addi¬ 
tional  term  of  thirty  years,  to  wit,  commencing  the  17th  of  June 
1826,  exclusive  of  the  right  of  any  other  person  or  corporation 
to  erect  any  bridge  for  accommodating  the  same  travel  as  above 
stated.  That  the  last  mentioned  act  went  into  operation,  and  im¬ 
mediately  thereupon  the  plaintiffs  relinquished  the  additional 


0 


9 


toll  on  the  Lord’s  day  and  have  ever  since  forborne  taking  it ; 
and  have  in  all  other  respects  complied  with  the  terms  of  the 
two  acts  above  mentioned.  By  reason  of  all  which  the  plain¬ 
tiffs  are  entitled  to  have,  during  the  residue  of  the  term  of  seventy 
years,  the  exclusive  right  of  erecting  and  maintaining  their  bridge, 
&lc.  The  plaintiffs  also  alleged,  that  the  said  corporation  called 
“  The  Proprietors  of  the  Warren  Bridge”  (under  whose  pre¬ 
tended  authority  the  individuals  named  in  this  bill  as  combining 
with  them  will  in  any  suit  at  law  attempt  to  justify  themselves) 
have  no  real  or  personal  property  or  other  funds  to  respond  any 
damages  which  the  plaintiffs  might  recover  at  law  for  any  injury 
sustained  by  the  erection  of  the  Warren  bridge,  unless  it  be  from 
assessments  upon  the  respective  proprietors,  which  assessments 
are  restricted  to  the  mere  expenses  attending  the  building  of  the 
same. 

The  bill  then  proceeds  to  aver,  that  the  corporation  called 
“  The  Proprietors  of  the  Warren  Bridge  ”  created  by  an  act 
passed  on  the  12th  of  March  1828,  (St.  1S27,  c.  127,)  together 
with  certain  other  persons,  to  wit,  John  Skinner  (and  others 
named  in  the  bill)  and  divers  other  persons  to  the  plaintiffs  un¬ 
known,  combining  and  confederating  together,  deny  and  disregard 
the  exclusive  right  of  the  plaintiffs,  and  openly  threaten  to  erect 
another  bridge  over  the  same  navigable  river,  for  the  passage  of 
foot  passengers  and  all  others,  with  their  cattle  and  carriages, 
upon  and  along  the  line  of  travel  aforesaid,  without  payment  to 
the  plaintiffs  of  the  tolls  granted  to  them  as  aforesaid,  and  have, 
as  the  plaintiffs  are  informed  and  believe,  commenced  the  build¬ 
ing  of  the  bridge,  beginning  the  same  at  the  distance  of  two 
hundred  and  sixty  feet  from  the  bridge  of  the  plaintiffs  on  the 
Charlestown  side  of  the  river,  and  eight  hundred  and  fifty  two  feet 
from  the  end  of  the  plaintiffs’  bridge  on  the  Boston  side  thereof, 
and  communicating  by  a  highway  laid  out  or  intended  to  be  laid 
out  by  the  defendants  from  the  Charlestown  end  of  the  Warren 
bridge  to  Charlestown  square,  with  which  square  both  of  the 
bridges  will  communicate  at  the  distance  of  about  390  feet  from 
the  respective  terminations  of  the  bridges  on  the  Charlestown 
side.  That  all  the  travel  of  every  kind,  direct  from  Charles¬ 
town  to  Boston,  which  shall  pass  over  the  Warren  bridge,  must 
2 


10 


as  the  highways  now  are  and  ever  have  been  established,  pass 
through  or  from  Charlestown  square,  and  must  necessarily,  if 
the  Warren  bridge  were  not  erected,  pass,  as  it  always  has  here¬ 
tofore,  over  the  bridge  of  the.  plaintiffs,  paying  the  lolls  estab¬ 
lished  as  aforesaid  ;  and  that  the  only  direct  avenue  from  the 
Boston  terminus  of  the  Warren  bridge  to  the  business  part  of 
Boston  is  laid  out  over  land  newly  made,  upon  which  there  is 
neither  any  dwelling-house  or  ware-house,  store  or  other  build¬ 
ing  for  business,  until  this  avenue  meets  one  of  the  great  or  com¬ 
mon  avenues  along  which  the  travel  over  the  plaintiffs’  bridge  has 
been  accustomed  to  pass.  That  the  bridge  is  about  to  be  erected, 
by  the  Warren  bridge  corporation  and  John  Skinner  and  oth¬ 
ers  with  the  open  and  avowed  purpose  and  intent  of  diverting 
the  travel  from  the  bridge  of  the  plaintiffs  as  aforesaid  ;  which 
will  operate  to  their  irreparable  loss,  detriment  and  injury,  and 
in  derogation  of  their  lawfully  vested  exclusive  rights  as  afore¬ 
said,  and  so  far  as  their  said  rights  are  concerned  will  be  a  nui¬ 
sance. 

The  bill  then  further  avers,  that  the  proprietors  of  the  War¬ 
ren  bridge  and  J.  Skinner  and  others  pretend,  that  they  are  duly 
authorized  to  build  a  bridge  as  aforesaid  by  virtue  of  a  certain 
act,  purporting  to  be  a  statute  of  the  commonwealth,  passed 
on  the  12th  day  of  March  1828,  entitled  “  An  act  to  establish 
the  Warren  Bridge  Corporation,”  a  copy  of  which  is  annexed, 
and  which  the  plaintiffs  pray  may  be  taken  as  a  part  of  their  bill 
of  complaiot.  Whereas  the  plaintiffs  expressly  charge,  that  the 
alleged  statute,  as  it  purports  to  grant  a  right  to  said  corporation 
incompatible  with  and  repugnant  to  the  vested  rights  of  the  plain¬ 
tiffs,  did  in  so  far,  and  in  that  respect  does  impair  the  obligation 
of  the  contract  aforesaid  between  the  commonwealth  and  the 
plaintiffs  by  which  the  said  exclusive  right  was  granted  to  the 
plaintiffs  ;  and  so  being  contrary  to  the  constitution  of  the  United 
States  is  utterly  void,  invalid  and  of  no  effect,  and  the  authority 
supposed  to  be  derived  therefrom  is  wholly  void  and  ineffectual. 
That  the  said  proprietors  and  said  J.  Skinner  and  others  do  at 
other  times  give  out  and  suggest,  that  on  account  of  the  increase 
of  travel,  the  public  necessity  or  convenience  did  require  that 
another  bridge  should  be  erected,  and  therefore,  notwithstanding 


11 


the  right  of  the  plaintiffs,  the  legislature  at  their  discretion  and 
for  the  public  accommodation,  had  a  right  and  were  well  war¬ 
ranted  in  passing  the  act  aforesaid,  and  the  authority  derived 
from  it  to  build  said  other  bridge  is  a  good  and  sufficient  author¬ 
ity  for  that  purpose  ;  whereas  the  plaintiffs  expressly  charge^ 
that  the  constitution  of  this  commonwealth  and  the  bill  of  rights 
thereof  do  so  far  restrain  legislative  power,  that  it  cannot  revoke 
or  annul  its  own  grant,  or  transfer  or  divest  a  legal  vested  right 
in  individuals  excepting  only  in  those  cases  where  the  property 
of  individuals  is  taken  or  appropriated  for  the  public  use  ;  and 
that  in  such  last  case  such  property  can  only  be  taken  or  ap¬ 
propriated  by  some  act  which  provides  a  just  compensation 
therefor  to  the  individuals  from  whom  it  is  so  taken  ;  and 
further,  that  if  the  public  necessity  or  convenience  had  required 
the  erection  of  another  bridge  at  the  place  aforesaid  (which 
they  wholly  deny),  such  other  bridge  being  to  the  detriment, 
diminution  and  destruction  of  the  aforesaid  rights  of  the  plaintiffs, 
would  have  been  a  taking  of  private  property  for  public  uses, 
within  the  true  meaning  and  intent  of  the  constitution  of  the 
United  States,  and  an  appropriation  of  the  property  of  individu¬ 
als  to  public  use  within  the  true  meaning  and  intent  of  the  con¬ 
stitution  of  this  commonwealth,  which  could  not  be  constitu¬ 
tionally  done  by  a  statute  of  the  commonwealth,  without  provid¬ 
ing  at  the  same  time  a  reasonable  compensation  therefor ;  but 
neither  by  the  supposed  act  nor  by  any  other  act  or  proceeding, 
did  the  legislature  of  the  commonwealth  provide  for  any  compen¬ 
sation  to  the  plaintiffs  for  their  property  so  alleged  to  be  taken  and 
appropriated  to  the  public  use  ;  and  for  this  cause  also  the  sup¬ 
posed  act  is  void.  And  the  plaintiffs  further  allege,  that  the 
proprietors  of  Warren  bridge  and  J.  Skinner  and  others  do  fur¬ 
ther  sometimes  give  out  and  pretend,  that  although  the  said 
Charles  river  bridge  is  42  feet  wide,  and  wider  than  required 
by  their  act  of  incorporation,  yet  it  is  too  narrow  to  accommodate 
the  public  travel  on  said  line  of  travel  ;  at  other  times,  that  the 
raising  of  the  draw  for  the  passage  of  vessels  is  an  obstruction  to 
the  public  travel,  which  might  in  some  measure  be  relieved  by 
the  erection  of  another  bridge  nearly  parallel  thereto  ;  at  other 
times,  that  the  avenue  to  said  bridge  on  the  Charlestown  side  is 


12 


too  narrow  for  the  travel  leading  thereto  ;  and  at  other  times, 
that  the  proposed  bridge  would  accommodate  passengers  wish¬ 
ing  to  go  to  the  westerly  part  of  Boston  from  Charlestown 
square  ;  whereas  the  plaintiffs,  denying  that  their  bridge  is  too 
narrow  to  accommodate  the  public  travel,  and  that  the  erection 
of  another  bridge  as  last  aforesaid  would  relieve  the  delay  and 
inconvenience  arising  from  the  raising  of  the  draw,  and  that  the 
avenue  leading  to  the  bridge  on  the  Charlestown  side  is  inconven¬ 
iently  narrow,  and  that  the  erection  of  a  new  bridge  in  the  place 
proposed  would  accommodate  passengers  from  Charlestown 
square  to  the  westerly  part  of  Boston,  other  than  a  very  few'  pas¬ 
sengers,  and  them  in  a  very  slight  degree,  do  expressly  charge , 
that  while  the  said  act  was  under  the  consideration  of  the  legisla¬ 
ture  and  before  the  passing  thereof,  the  plaintiffs  did,  by  memori¬ 
als  addressed  to  the  Senate  and  House  of  Representatives  of  this 
commonwealth,  assert  and  make  knowm  their  rights  aforesaid  and 
did  protest  against  the  granting  of  any  authority  to  erect  the  new 
bridge  ;  and  did  further  expressly  offer,  at  their  own  expense,  if 
so  authorized  by  the  legislature,  to  make  their  own  bridge  sixty  or 
eighty  feet  wide,  and  also,  in  order  to  relieve  the  delay  and  incon¬ 
venience  occasioned  by  raising  the  draw  thereof,  did  offer  to  con¬ 
struct  at  their  own  expense  a  circular  draw  thereto,  so  that  travel¬ 
lers  should  not  be  delayed  or  impeded  while  vessels  were  actually 
passing  through  their  bridge  ;  and  also,  that  they  were  willing 
to  make  the  Charlestown  avenue  to  their  bridge  of  any  width 
which  the  legislature  might  authorize  ;  and  also,  if  deemed 
expedient,  to  construct  a  spur  bridge,  leading  from  their  bridge 
to  a  point  at  or  near  the  spot  where  the  proposed  bridge  of  the 
defendants  was  to  terminate  on  the  Boston  side  ;  by  means  of 
which  the  impediments  to  navigation  as  w'ell  as  other  incon¬ 
veniences  would  be  avoided  ; — and  also,  that  they  would  do 
any  other  matter  or  thing,  even  to  the  extent  of  building 
another  bridge,  in  any  way  pertaining  to  the  accommodation 
of  the  public,  &.c.  And  forasmuch  as  matters  of  this  de¬ 
scription  are  more  properly  cognizable  and  relievable  in  this 
Court  sitting  as  a  court  of  equity,  and  in  regard  that  the  plaintiffs 
have  no  mode  of  inquiry  into,  ascertaining  and  preventing  the 
said  nuisance,  detriment  and  injury  threatened  and  commenced 


13 


against  their  said  exclusive  rights  set  forth  as  aforesaid,  but  by 
the  aid  of  this  Court  sitting  as  a  court  of  equity  ;  now,  to  the  end 
that  the  proprietors  of  the  Warren  bridge,  and  the  said  John 
Skinner  and  others  may  true  and  perfect  answer  make  in  the 
premises,  &ic.  and  that  they  and  their  agents  and  servants  may 
forthwith  be  absolutely  enjoined,  restrained  and  prohibited  from 
building  or  erecting  or  commencing  or  proceeding  to  build  or 
erect  the  said  bridge  at  the  place  aforesaid,  Sic. 

The  bill  w7as  filed  on  the  2Sth  of  June  1828,  and  a  subpoena 
was  prayed  for,  which  was  granted,  and  on  the  same  day  a  mo¬ 
tion  was  made  for  an  immediate  injunction  to  stay  the  further 
building  and  finishing  of  Warren  bridge,  until  a  hearing  and 
final  decision  upon  the  bill  and  such  answer  as  should  be  made 
thereto  by  the  parties  defendant.  On  this  motion  notice  to  the 
defendants  was  ordered,  and  the  5th  of  August  assigned  for  a 
hearing  ;  on  which  day  both  parties  appeared  by  their  counsel, 
and  were  heard  on  the  question,  whether  the  injunction  moved 
for  should  be  granted.  Certain  affidavits  and  maps  were  read 
and  exhibited  by  the  plaintiffs  in  proof  of  the  facts  set  forth  in 
the  bill.  An  immediate  injunction  w'as  refused,  for  the  reasons 
stated  by  the  Court  in  Pickering’s  Reports,  vol.  6,  p.  393. 

On  November  1,  1828,  (in  vacation,)  the  defendants  filed 
an  answer  to  the  bill. 

In  their  answer,  the  defendants  admit  the  enactment  of  the  stat¬ 
ute  of  1784,  c.  53,  (passed  March  9,  17S5,)  but  they  deny  that 
the  corporation  thereby  created  were  authorized  to  build  a  bridge 
near  the  ferry  but  were  alone  permitted  to  build  one  at  the  ferry  ; 
and  they  deny  that  the  plaintiffs’  bridge  was  intended  to  accom¬ 
modate  all  passengers  of  every  description  during  the  term  of  for¬ 
ty  years  on  any  particular  line  of  travel.  They  admit,  that  by 
that  statute  it  was  provided,  that  for  the  purpose  of  reimbursing 
those  proprietors  the  money  which  should  be  expended  in  build¬ 
ing  and  supporting  that  bridge,  a  toll  should  be  established  at 
the  rates  set  forth  in  the  act,  and  that  double  toll  should  be  taken 
on  the  Lord’s  day,  but  they  deny  that  any  duty  or  obligation 
was  imposed  by  the  act  upon  the  proprietors,  other  than  that 
the  license  given  by  the  act  to  build  the  bridge  would  have  been 
ineffectual  without  the  performance  of  the  conditions  therein 


14 


provided  ;  or  that  any  penalty  is  therein  contained,  other  than 
that  the  act  should  be  void  if  the  bridge  should  not  be  complet¬ 
ed  within  the  term  of  three  years.  They  admit  that  the  bridge 
was  built  within  that  time,  but  they  deny  that  the  corporation 
accepted  the  act  upon  the  terms  and  conditions  as  set  forth  in 
their  bill ;  or  that  a  contract  arose  therefrom  of  the  import  and 
effect  alleged  by  the  plaintiffs.  Not  admitting  that  Harvard 
College  possessed  an  exclusive  right  of  ferry,  and  alleging 
that  if  it  did,  the  general  court  could  not  have  transferred  the 
same  to  private  persons  or  corporations,  they  say,  that  in  1631 
the  government  of  the  colony  of  Massachusetts  Bay,  did,  by 
an  ordinance,  establish  a  ferry  between  Boston  and  Charlestown, 
to  be  kept  by  and  under  the  government,  for  the  accommodation 
of  the  people;  that  in  1654  the  general  court  passed  an  ordi¬ 
nance  whereby  it  w’as  declared,  that  the  profit  of  the  ferry, 
which  had  been  before  temporarily  granted  to  the  college,  should 
be  continued  ;  and  they  allege,  that  the  ferry  belonged  to,  and 
the  rates  of  toll  were  subject  to  the  regulation  and  control  of 
the  general  court,  for  the  public  benefit ;  and  that  by  various 
laws,  passed  from  time  to  time,  the  general  court  did  regulate 
the  same  and  declare  who  should  be  exempt  from  toll,  and  how 
the  ferry  should  be  leased  and  managed.  They  deny  that  the 
statute  of  1784  w'as  passed  with  the  consent  of  Harvard  Col¬ 
lege,  or  that  the  college  had  knowledge  thereof,  or  that  any 
conveyance  was  made  by  the  college  to  those  proprietors,  or 
that  those  proprietors  became  the  successors  or  grantees  of  the 
college,  of  the  ferry  or  of  any  such  exclusive  right  as  is  alleged 
by  the  plaintiffs.  They  deny  that  those  proprietors  were  enti¬ 
tled  by  the  act  of  incorporation  to  the  exclusive  right  and 
privilege  of  erecting  and  maintaining  a  bridge  over  the  river 
for  the  passage  of  all  persons,  for  loll,  upon  and  along  the  line  of 
travel  as  set  forth  by  the  plaintiffs ;  and  they  allege,  that  if  the 
act  had  contained  any  such  exclusive  right,  it  would  have  been 
void,  as  contravening  the  sixth  article  of  the  bill  of  rights,  which 
declares  that  no  man,  nor  corporation,  has  any  other  title  to  ob¬ 
tain  advantages  or  particular  or  exclusive  privileges  distinct  from 
those  of  the  community,  than  what  arises  from  the  consideration 
of  services  rendered  to  the  public ;  and  they  allege,  that  Thomas 


15 


Russell  and  others,  who  petitioned  for  the  act,  had  not  then  ren¬ 
dered  to  the  public  any  services,  nor  is  it  averred  in  the  bill  that 
the  act  was  founded  upon  the  consideration  of  services  render¬ 
ed  by  them. 

They  further  say,  that  from  the  time  of  the  first  settlement 
of  the  colony  of  Massachusetts  Bay,  the  general  courts  thereof 
were  invested  by  the  colony  and  province  charters,  with  the 
right  of  controlling  the  use  of  the  sea-shore,  arms  of  the  sea 
and  navigable  waters,  and  of  laying  out  all  public  roads,  ferries, 
bridges,  and  ways  for  the  encouragement  and  facility  of  com¬ 
merce,  shipping  and  trade  ;  and  of  altering  the  same  and  in¬ 
creasing  the  number  thereof,  from  time  to  time,  as  the  conven¬ 
ience,  safety  and  welfare  of  the  people  required,  the  better  to 
accommodate  the  same  travel  which  passed  over  roads,  ferries 
and  bridges  previously  established  and  would  have  continued  so 
to  pass  if  the  new  roads,  &c.  had  not  been  established  ;  and 
that  this  authority  was  exercised  by  the  general  courts,  at  their 
own  mere  motion,  as  well  as  on  the  petition  of  private  persons ; 
and  that  when  petitions  were  made,  the  petitioners  were  heard 
either  before  the  general  court  or  their  committee,  and  there¬ 
upon  examination  was  had  whether  the  exercise  of  their  au¬ 
thority,  as  prayed  for,  would  be  to  the  convenience  or  detriment 
of  the  public ;  and  on  the  reports  made  by  the  committees,  the 
general  court  decided  definitively  upon  such  petitions  ;  and  they 
allege  that  such  course  of  proceedings  and  inquiry  had  been 
used  and  practised  upon,  as  well  before  the  adoption  of  the 
constitution  of  this  commonwealth,  as  since. 

They  say,  that  at  the  time  when  the  act  of  1784  was  passed, 
there  were  and  yet  are  navigable  waters  and  an  arm  of  the  sea 
extending  between  Charlestown  and  Boston,  and  that  Massachu¬ 
setts,  as  a  sovereign  state,  was  and  still  is  possessed  of  the  exclu¬ 
sive  right  and  ownership  thereof ;  and  that  the  regulation,  use  and 
management  of  the  same  for  the  public  welfare  are  subject  to 
the  control  of  the  legislature  ;  that  Russell  and  others  sub¬ 
scribed  to  a  fund  for  erecting  a  bridge  across  those  waters,  cal¬ 
led  Charles  river,  and  in  order  that  such  bridge  might  not  be 
deemed  a  public  nuisance,  applied  by  their  petition  to  the  legis¬ 
lature  for  permission  to  build  it,  representing  that  it  would  be 


$ 

16 

of  great  public  utility ;  and  at  the  same  session  of  the  legisla¬ 
ture,  John  Cabot  and  Andrew  Cabot  also  preferred  a  petition, 
showing  that  a  bridge  over  Charles  river,  from  Lechmere’s 
Point  in  Cambridge  to  Barton’s  Point  in  Boston,  and  distant  from 
the  ferry  about  one  half  of  a  mile,  would  be  essentially  useful  to 
the  public,  and  offered  to  build  the  same  at  their  own  expense, 
they  receiving  a  reasonable  toll,  and  so  soon  as  the  sum  which 
might  be  expended  in  building  the  bridge,  and  the  interest  there¬ 
of,  should  be  repaid,  to  renounce  all  title  to  the  bridge  ;  that  both 
petitions  were  referred  to  a  committee  of  the  legislature,  who 
heard  the  parties,  and  made  their  report,  that  the  petitioners  for 
building  a  bridge  at  the  ferry  should  have  leave  to  bring  in  a  bill 
for  that  purpose  upon  certain  principles  therein  set  forth  ;  which 
petitions  and  report  the  defendants  exhibit  as  a  part  of  their  an¬ 
swer.  They  further  say,  that  the  legislature  thereupon  granted  a 
license  to  Russell  and  others  to  build  a  bridge  in  the  place 
where  the  ferry  was  then  kept,  and  for  the  purpose  of  reim¬ 
bursing  them  the  money  to  be  expended  by  them,  established  a 
certain  toll  to  be  taken  for  all  persons,  animals  and  vehicles 
passing  over  the  bridge,  for  the  term  of  forty  years. 

They  further  say,  that  the  right  of  establishing  ferries  and 
any  other  bridge  over  these  navigable  waters,  as  public  neces¬ 
sity  or  convenience  should  require,  was  not  by  the  act  of  1784 
granted  away,  but  the  same  remains  with  the  commonwealth  as 
a  sovereign  stale. 

They  further  say,  that  before  the  enactment  of  the  statute  of 
1791,  c.  62,  (passed  March  9,  1792,)  by  which  the  proprietors 
of  West  Boston  bridge  w'ere  incorporated,  Francis  Dana  and 
others  applied  by  petitions  to  the  general  court  for  licenses  to 
erect  other  bridges,  representing  that  the  wants  and  convenience 
of  the  public  required  that  other  bridges  connected  with  Bos¬ 
ton  should  be  erected  across  these  navigable  waters  ;  and  there¬ 
upon  the  proprietors  of  Charles  river  bridge  presented  a  re¬ 
monstrance  against  the  same,  alleging  that  the  granting  of  the 
petitions  would  militate  against  a  grant  to  them  from  the  com¬ 
monwealth  ;  whereupon  the  petitions  and  remonstrance  were 
referred  to  a  committee  of  both  houses  of  the  general  court, 
who,  after  fully  hearing  those  proprietors  and  the  petitioners,  re- 


17 


ported  that  there  was  no  ground  to  maintain  that  the  act  of 
17S4  is  an  exclusive  grant  of  the  right  to  build  over  the  waters 
of  Charles  river  ;  which  report  was  accepted  by  the  general 
court. 

They  further  say,  that  the  proprietors  of  Charles  river  bridge 
made  a  false  and  colourable  representation  to  the  legislature  as 
to  their  expenses  and  receipts,  and  that  influenced  by  the  mis¬ 
representations,  the  legislature  extended  to  seventy  years  the  term 
of  taking  toll  ;  and  they  insist,  that  by  reason  of  the  false  rep¬ 
resentations  this  enlargement  of  the  term  ought  to  be  deemed 
void . 

They  deny  that  any  vote  or  by-law  of  the  proprietors  of 
Charles  river  bridge  was  ever  passed,  relinquishing  the  addition¬ 
al  toll  on  the  Lord’s  day  ;  or  that  any  vote  or  by-law  was  duly 
and  seasonably  passed  accepting  the  provisions  in  the  act  of 
1791,  or  that  any  exclusive  right  vested  in  that  corporation  by 
force  of  that  act.  They  admit  that  the  proprietors  of  West 
Boston  bridge  erected  a  bridge,  but  deny  that  the  plaintiffs  de¬ 
rived  any  right  or  title  in  consequence  thereof.  They  deny  that 
the  plaintiffs  have  annually  paid  G66  dollars  and  67  cents  to 
Harvard  College,  or  have  complied  with  the  terms  of  the  act 
of  1784,  and  deny  that  they  are  entitled  to  the  exclusive  right 
and  privilege  claimed  in  their  bill. 

They  allege,  that  the  term  of  forty  years  mentioned  in  the 
act  of  1784,  had  expired  before  the  defendant’s  act  of  incorpo¬ 
ration  was  passed  ;  and  further,  that  the  proprietors  of  Charles 
river  bridge  had,  previously  thereto,  been  fully  reimbursed  all 
costs,  interest  and  expenses  by  them  incurred  or  sustained  in 
building  and  maintaining  their  bridge,  and  had  received  be¬ 
sides,  from  the  tolls,  the  further  sum  of  1,200,000  dollars,  in¬ 
cluding  interest. 

They  further  say,  that  in  1785  the  population  of  Boston 
amounted  to  17,000  souls  only,  and  that  of  Charlestown  to 
1200;  and  that  before  the  enactment  of  the  statute  of  1827 
c.  127,  (passed  March  12,  1828,)  incorporating  the  defen¬ 
dants,  the  population  of  Boston  had  increased  to  upwards  of 
60,000  souls,  and  that  of  Charlestown  to  8,000 ;  that  the  pop¬ 
ulation  of  the  surrounding  towns  had  increased  in  a  like  propor- 

3 


18 


tion ;  and  that  Charles  river  bridge  was  not  sufficiently  large 
and  commodious  to  accommodate  the  increased  population, 
trade  and  commerce,  but  had  long  been,  and  then  was,  ex¬ 
tremely  inconvenient,  as  well  as  hazardous,  for  the  transporta¬ 
tion  of  persons,  goods  and  merchandise  ;  that  in  1785,  two 
thirds  of  the  inhabitants  oT  Boston  dwelt  at  the  northerly  part  of 
Boston  and  near  to  the  place  where  the  ferry  was  kept  ;  but  that 
in  182S  one  half  of  Boston  to  the  westward  and  southward  of 
that  place,  which  had  been  vacant  land  and  water,  had  been 
built  upon  and  contained  more  than  30,000  inhabitants,  who 
could  not  carry  on  their  trade  and  business  but  at  great  loss  of 
time  and  money,  and  much  inconvenience,  without  another  and 
nearer  avenue  and  bridge  to  Charlestown. 

They  allege  that  the  public  safety  and  convenience  required 
that  more  commodious  avenues  to  and  from  Boston  should  be 
constructed  and  maintained  ;  and  on  the  petition  of  John  Skin¬ 
ner  and  other  citizens  representing  the  aforesaid  circumstances, 
a  committee  of  both  houses  of  the  legislature  was  appointed  to 
examine  into  the  facts,  and  hear  all  parties  interested  ;  that  the 
committee  gave  due  notice  of  their  meetings  and  were  attended 
by  the  plaintiffs  and  Skinner  and  others,  and  having  deliberate¬ 
ly  and  fully  investigated  the  matters  aforesaid,  they  made  their 
report,  that  public  convenience  required,  and  that  public  justice 
did  not  militate  against  the  grant  of  a  charter  for  another  bridge 
from  Charlestown  to  Boston,  which  report  was  accepted  ;  and 
thereupon  the  legislature,  in  order  to  the  public  welfare,  and  be¬ 
ing  the  sole  judges  thereof  under  the  constitution,  did  duly  pass 
the  act  creating  the  corporation  of  the  Proprietors  of  Warren 
Bridge  ;  and  they  allege  that  the  act  was  thereafter  duly  accept¬ 
ed  by  that  corporation. 

They  further  say,  that  on  April  14,  1828,  that  corporation 
was  duly  organized  ;  that  before  the  filing  of  the  bill,  they  had 
begun  to  build  a  bridge  across  Charles  river,  pursuant  to  their 
charter,  but  that  it  was  not  then,  nor  is  it  yet  completed.  They 
deny  any  avowed  purpose  or  intent  of  diverting  travel  from 
Charles  river  bridge,  and  allege  that  their  sole  intent  is  to  fur¬ 
nish  another  and  more  safe  and  convenient  avenue  for  the  ac¬ 
commodation  of  the  public.  They  aver  that  if  any  damages 


19 


should  be  recovered  at  law  by  the  plaintiffs,  for  any  injury  they 
may  sustain,  the  corporation  defendant  possess  property  more 
than  sufficient  to  satisfy  the  same. 

They  deny  that  the  act  of  1827  impairs  the  obligation  of  any 
contract  with  the  proprietors  of  Charles  river  bridge  ;  or  that 
any  right  or  property  of  the  plaintiffs  has  been  taken  or  appro¬ 
priated  to  the  public  use  through  or  by  means  of  that  act ;  and 
they  allege  that  if  any  real  estate  had  been  taken,  there  is  a 
mode  provided  in  the  4lh  section  of  the  act,  by  which  compen¬ 
sation  can  be  had  therefor,  pursuant  to  the  provisions  of  the 
constitution  of  this  commonwealth. 

They  deny  that  the  travel  referred  to  in  the  bill  has  always 
heretofore  passed  over  Charles  river  bridge,  and  must,  as  the 
highways  now  are  or  ever  have  been  established,  necessarily 
pass  over  the  same,  if  the  Warren  bridge  should  not  be  con¬ 
structed  ;  but  they  aver,  that  persons  intending  to  pass  to  and 
from  Boston  and  Charlestown,  with  their  vehicles  and  animals, 
did  before  and  since  the  act  of  1784,  pass  and  were  transported 
in  boats,  and  yet  may  so  pass  and  be  transported  ;  and  that 
since  the  act  of  1784,  such  persons  have  passed,  and  may  and  still 
do  pass,  over  Canal  bridge  and  Prison  Point  dam  bridge,  at  the 
distance  of  about  1700  feet  from  Charlestown  square,  and  at 
the  distance  of  about  90  rods  from  the  main  street  leading  there¬ 
to  ;  which  last  bridges  were  erected  by  permission  of  the  legis¬ 
lature,  given  by  certain  acts  in  1806  and  1807,  and  the  legisla¬ 
ture  authorized  the  same  to  be  connected  with  a  road  leading 
thereto  from  the  main  street  in  Charlestown,  by  an  act  passed 
in  1814. 

They  deny  that  the  construction  intended  for  a  bridge,  yet 
is  or  can  be  a  nuisance,  as  it  regards  the  plaintiffs  ;  or  that  if 
the  rights  of  the  plaintiffs  were  such  as  pretended,  it  could  be 
any  nuisance  before  toll  had  been  diverted  from  Charles  river 
bridge,  and  taken  on  behalf  of  the  defendants.  And  they  al¬ 
lege,  that  if  any  nuisance  or  wrong  shall  be  created  or  done 
to  the  plaintiffs,  by  reason  of  the  constructing  and  maintaining  a 
bridge  by  virtue  of  the  act  of  1827  or  otherwise,  the  common 
law  will  afford  a  plain,  adequate  and  complete  remedy,  and  they 
insist  that  this  Court,  as  a  court  of  chancery,  has  no  jurisdiction 
in  the  premises. 


20 


And  inasmuch  as  the  several  matters  set  forth  in  the  bill, 
and  slated  by  way  of  defence  in  the  answer,  are  controversies 
concerning  property,  and  in  which  parties  have  a  right  to  a  trial 
by  jury,  by  the  constitution  of  the  commonwealth,  the  defendants 
require  that  the  same  may  be  tried  by  a  jury  to  be  for  that  pur¬ 
pose  duly  empannelled^ 

On  the  13th  of  November  1S2S,  (in  term  time,)  the  plain¬ 
tiffs  filed  amendments  to  their  bill. 

In  these  they  charge,  that  by  the  acceptance  of  the  act  of 
1784  on  their  part,  they  became  bound  to  the  performance  of 
the  several  conditions  and  stipulations  contained  in  the  act,  on 
their  part  to  be  performed,  for  the  benefit  of  the  public. 

They  charge,  that  shortly  after  the  passing  of  the  act  of  1784, 
the  corporation  were  duly  organized  under  the  same,  and  have 
so  continued  to  act  to  the  lime  of  filing  this  their  bill ;  that  be¬ 
fore  the  expiration  of  the  three  years,  the  corporation  finished 
the  bridge  and  opened  the  same  for  public  travel,  viz.  on  the 
17th  of  June  1786,  and  have  ever  since  paid  the  annuity  to 
Harvard  College,  and  upheld  and  maintained  the  bridge  ;  and 
they  thereupon  charge,  that  these  acts  and  doings  are  conclu¬ 
sive  evidence  of  their  acceptance  of  the  act  of  incorporation. 

They  charge,  that  after  opening  the  bridge  for  public  travel, 
Harvard  College  forthwith  ceased  to  maintain  any  ferry  from 
Charlestown  to  Boston,  and  have  never  since  claimed  to  keep 
or  maintain  that  ferry,  or  to  demand  or  receive  any  tolls  or  oth¬ 
er  profits  therefrom  ;  that  ever  since  the  opening  of  the  bridge 
for  public  travel,  for  the  space  of  forty-two  years,  the  plaintiffs, 
pursuant  to  the  provisions  of  the  act,  have  paid  to  Harvard  Col¬ 
lege  and  the  college  have  received  the  sum  of  666  dollars  67 
cents  annually  ;  whereupon  they  charge,  that  these  acts  are 
conclusive  evidence  that  Harvard  College  were  parties  to  the 
act  of  17S4,  and  agreed  to  all  the  provisions  of  the  same,  and 
to  the  surrender  and  assignment  of  their  right  in  the  ferry  to  the 
use  of  the  plaintiffs,  to  enable  them  to  build  the  bridge  for  the 
better  accommodation  of  public  travel  between  Charlestown  and 
Boston,  and  that  with  such  agreement  the  general  court  had 
good  right  so  to  transfer  the  exclusive  right  of  Harvard  College, 
by  force  of  the  act  of  17S4. 


21 


They  charge,  that  no  laws  ever  were  or  lawfully  could  be 
passed,  under  the  power  of  regulating,  to  destroy  or  take  away 
the  franchise,  or  materially  to  impair  or  affect  the  right  of  Har¬ 
vard  Coliege  in  and  to  the  franchise  of  the  ferry  :  but  whether 
the  general  court  had  or  had  not  the  power  of  regulating  the 
tolls  of  the  ferry,  or  of  otherwise  controlling  and  managing  the 
same,  still  the  general  court,  by  fixing  the  rate  of  tolls  to  be  tak¬ 
en  at  the  bridge,  by  the  act  of  incorporation  and  by  the  addi¬ 
tional  act  of  1791,  for  certain  terms  therein  mentioned,  fully 
executed  their  powers,  for  those  terms,  and  by  force  of  those 
acts  the  plaintiffs  became  entitled  to  collect  and  receive  the  tolls 
for  those  limited  terms,  free  and  exempt  from  any  power  of  the 
legislature  to  reduce  the  same. 

They  charge,  that  by  the  act  of  1784,  no  exclusive  or  other 
title  to  take  the  tolls  could  arise  until  the  completion  of  the 
bridge  ;  that  the  erecting  of  it  was  declared  to  be  a  work  of 
great  public  utility  ;  that  the  erection  and  maintenance  of  the 
same,  at  the  great  expense  and  hazard  of  the  corporation,  were 
contemplated  as  highly  important  and  beneficial  services  ren¬ 
dered  to  the  public;  that  the  tolls  were  granted  upon  considera¬ 
tion  of  these  services  to  be  rendered  to  the  public  ;  and  so  they 
charge,  that  such  exclusive  grant  in  no  wise  contravened  either 
the  letter  or  the  spirit  of  the  sixth  article  of  the  bill  of  rights. 

They  charge,  that  before  the  erection  of  their  bridge,  the 
ancient  ferry  between  Boston  and  Charlestown  was  the  only  ferry 
between  these  towns,  and  that  all  regular  public  travel,  direct 
between  Charlestown  and  Boston  and  over  Charles  river,  passed 
by  the  ferry  ;  that  it  manifestly  appears  from  the  act  of  1784, 
that  the  bridge  was  intended  for  general  public  use  and  benefit, 
and  the  better  to  accommodate  the  public  travel,  which  before 
had  passed  by  the  ferry,  and  as  a  substitute  for  the  ferry ;  that 
the  provisions  therein  contained  did  not  constitute  a  mere  license 
to  obstruct  the  navigable  waters,  but  a  contract  between  the 
corporation  and  the  government,  whereby  the  public  granted 
the  said  exclusive  l'ights  to  the  corporation  as  a  beneficial  inter¬ 
est,  in  consideration  of  important  public  services  by  them  to  be 
performed,  and  whereby  the  government  necessarily  restrained 
themselves  from  granting  any  license  to  any  other  person  in  such 


22 


manner  as  to  annul  or  essentially  impair  the  beneficial  fran¬ 
chise  thus,  for  valuable  consideration,  granted  to  the  plaintiffs. 

In  regard  to  the  allegation,  that  a  committee  of  both  houses 
of  the  general  court  reported  that  there  was  no  ground  to  main¬ 
tain  that  the  act  of  1784  is  an  exclusive  grant  of  the  right  to 
build  over  the  waters  of  that  river,  the  plaintiffs  charge,  that  if 
such  a  report  was  accepted,  it  could  not  have  the  force  of  law,  and 
even  had  it  been  made  the  basis  of  any  legislative  act,  declarato¬ 
ry  of  the  rights  of  the  plaintiffs,  it  would  have  no  force  to  inval¬ 
idate  or  impair  those  rights ;  but  they  further  charge,  that  the 
question  whether  the  plaintiffs  had  or  had  not  an  exclusive  grant 
of  the  right  to  build  over  Charles  river,  in  its  whole  extent,  has 
no  bearing  upon  any  question  set  forth  or  raised  by  the  plaintiffs’ 
bill. 

They  deny  that  a  report  ofa  committee  ofthe  legislature  recom¬ 
mending  that  an  extension  of  the  term  be  allowed  them  for  taking 
toll,  was  ever  made  or  accepted,  or  that  they  ever  solicited  the 
acceptance  of  the  same,  or  any  enlargement  thereof. 

Protesting  that  the  imputations  of  fraud  on  the  part  of  the 
proprietors  of  Charles  river  bridge  in  obtaining  an  extension  of 
their  charter  are  wholly  groundless,  the  plaintiffs  nevertheless 
charge,  that  if  any  of  those  proprietors  did  make  false  represen¬ 
tations,  the  act  of  1791  would  not  thereby  be  void  ;  and  further, 
that  the  matter  of  this  imputation,  being  matter  of  penalty  and  for¬ 
feiture,  can  be  inquired  into  only  by  some  proper  proceedings 
in  the  name  and  by  the  authority  of  the  commonwealth. 

They  charge,  that  immediately  after  the  passing  of  the  act 
of  1791,  the  proprietors  of  Charles  river  bridge  caused  all  the 
clauses  of  the  act,  which  in  any  way  related  to  that  corporation, 
to  be  entered  in  their  book  of  records,  in  testimony  of  their  ac¬ 
ceptance  of  the  same  ;  that  they  thereupon  forthwith  ceased  to 
take  the  additional  toll  on  the  Lord’s  day,  according  to  the  pro¬ 
visions  of  the  act — which  being  for  their  benefit,  their  assent  to 
the  same  is  legally  to  be  presumed  ;  and  further,  that  before 
the  commencement  of  their  extended  term  for  taking  lolls,  they, 
as  a  corporation,  for  the  purpose  of  obviating  all  objections  in 
point  of  form,  passed  a  full  and  formal  vole,  reciting  the  vari¬ 
ous  previous  acts  of  the  corporation,  which  manifested  a  previous 


23 


acceptance  of  the  additional  act,  and  thereby  expressly  accepting 
the  act ;  which  several  acts  and  votes  they  charge  to  be  con¬ 
clusive  legal  evidence  of  tbe  acceptance  thereof  by  the  corpo¬ 
ration. 

The  plaintiffs,  denying  that  they  have  received  the  sum  of 
1,200,000  dollars,  charge  that  the  only  reimbursement  pro¬ 
vided  for  and  contemplated  in  the  original  and  additional  acts, 
was  the  uninterrupted  enjoyment  of  the  receipt  of  the  tolls  there¬ 
in  stipulated,  for  the  terms  therein  mentioned  ;  that  the  ques¬ 
tion  how  much  they  have  received  is  rendered  wholly  immate¬ 
rial  by  the  express  terms  of  the  acts,  but  that  in  fact,  whatever 
may  have  been  the  cost  of  the  bridge  to  the  early  proprietors 
and  stockholders,  all  the  beneficial  interest  therein  is  divided  in¬ 
to  transferable  shares  and  held  by  divers  individuals,  who,  by 
distribution  or  purchase,  or  other  good  consideration,  have  ac¬ 
quired  the  same  at  valuations  and  estimates  not  founded  upon 
the  original  cost  of  the  bridge,  but  upon  the  probable  amount  of 
the  tolls  for  the  terms  of  time  stipulated  in  the  acts,  and  there¬ 
fore  that  the  corporation  and  the  proprietors  of  tbe  shares  there¬ 
in  have  not  been  and  cannot  be  reimbursed  in  the  manner  con¬ 
templated  and  provided  for  in  the  acts,  in  any  other  way  than 
by  the  free  and  uninterrupted  enjoyment  of  the  tolls  for  the 
terms  of  time  stipulated. 

The  plaintiffs,  not  denying  the  increase  of  the  population  in 
Boston  and  Charlestown,  and  that  to  a  certain  extent,  the  leg¬ 
islature  are  judges  of  the  public  necessity  and  convenience,  and 
for  the  purpose  of  facilitating  the  hearing  and  decision  of  this 
cause,  withdrawing  their  express  denial  of  the  existence  of 
such  public  necessity  or  convenience,  nevertheless  deny  that  the 
act  of  1827  does  any  where  express  the  determination  of  the 
legislature,  that  in  point  of  fact  any  such  public  necessity  or  con¬ 
venience  did  require  the  erection  of  another  bridge  over  Charles 
river,  between  Boston  and  Charlestown,  for  the  accommodation 
of  the  public  travel,  and  further  expressly  charge,  that  if  public 
convenience  and  necessity  did  require  the  erection  of  such 
other  bridge,  or  other  further  accommodation  of  the  public 
travel  over  the  river,  the  same  could  not  be  granted  in  such 
manner  as  to  destroy  or  impair  the  franchise  of  the  plaintiffs  to 


24 


collect  and  receive  tolls,  without  a  full  and  adequate  compensa¬ 
tion  to  them  therefor  ;  and  further,  that  they  have  been  at  all 
times  ready  and  willing  to  provide  for  such  further  public  accom¬ 
modation,  as  by  their  bill  is  fully  set  forth. 

And  the  defendants  pretend,  that  the  construction  so  intended 
for  a  bridge  is  not  yet  nor  can  be  a  nuisance  as  it  regards  the 
plaintiffs,  until  toll  shall  have  been  diverted  from  Charles  river 
bridge,  and  taken  by  the  defendants  ;  as  if  the  opening  of  a  free 
bridge,  side  by  side,  and  nearly  parallel  to  the  bridge  of  the 
plaintiffs,  on  the  same  line  of  travel,  and  the  permission  for  per¬ 
sons  to  pass  thereon  free  of  toll,  were  less  an  injury  to  the  plain¬ 
tiffs  than  the  erection  of  a  bridge  and  the  taking  of  tolls  thereon 
at  the  like  rates  with  the  tolls  granted  to  and  taken  by  the  plain¬ 
tiffs  by  virtue  of  their  franchise. 

The  plaintiffs,  denying  that  the  sixth  article  in  the  bill  of  rights 
applies  to  the  trial  of  matters  in  equity,  and  not  admitting  that 
there  are  any  matters  of  fact  at  issue  between  the  parties,  re¬ 
quiring  the  intervention  of  a  jury,  nevertheless  pray,  if  the 
Court  should  be  otherwise  of  opinion,  that,  for  that  purpose, 
according  to  the  usage  and  practice  of  chancery,  such  distinct 
and  pertinent  issue  or  issues  as  to  matters  of  fact,  may  be  fram¬ 
ed  by  the  Court,  as  the  Court  may  judge  necessary  to  be  submit¬ 
ted  to  a  jury. 

On  the  2nd  of  December  1828,  (in  term  time,)  the  defend¬ 
ants  filed  an  answer  to  the  amended  bill. 

They  say,  that  the  proprietors  of  Charles  river  bridge  did  not, 
after  the  passage  of  the  act  of  17S4,  by  any  vote  or  written  de¬ 
claration,  accept  that  charter  or  act ;  and  they  deny  that  the 
matters  set  forth  by  the  plaintiffs,  if  they  had  been  done  and 
performed,  can  be  deemed  to  be  evidence  of  the  acceptance  of 
the  act. 

They  say,  that  prior  to  the  passing  of  that  act,  the  revenue  of 
the  ferry  had  been  for  divers  years,  and  then  was,  farmed  out  by 
Harvard  College  ;  and  although  it  may  be  true,  that  their  lessees 
did  cease,  at  some  time  thereafter,  to  keep  the  ferry,  yet  the 
defendants  deny  that  the  college  discontinued  the  ferry  ;  or  that 
the  proprietors  of  Charles  river  bridge  have  paid  to  the  col¬ 
lege  annually  the  sum  set  forth  by  the  plaintiffs ;  or  that  any  as- 


25 


sent  was  given  by  the  college  to  the  matters  set  forth  by  the 
plaintiffs  ;  or  that  the  legislature  have  fully  executed  their  pow¬ 
ers  as  pretended  by  the  plaintiffs. 

They  say,  that  the  gift  to  the  college  of  the  revenue  of  the 
ferry  under  the  authority  of  the  colonial  government,  was  not  the 
grant  of  any  franchise  ;  and  if  it  were,  that  the  rights  of  the  ferry 
were  not  transferred  by  the  act  of  1784,  nor  the  powers  of  the 
legislature  in  relation  to  the  same  in  any  way  abridged. 

They  say,  that  prior  to  the  forming  of  the  constitution,  the 
people  of  this  commonwealth,  long  persuaded  of  the  injurious 
tendency  and  grievous  effects  of  monopolies,  had,  by  public  acts 
and  laws,  declared  and  manifested  their  will,  that  the  deposita¬ 
ries  of  legislative  and  executive  power  should  not  grant  any 
monopoly  or  exclusive  privilege,  unless  for  new  inventions  pre¬ 
viously  discovered  and  made,  and  then  for  a  short  time  only  ; 
and  in  order  to  limit  the  powers  of  the  legislature,  they  express¬ 
ly  provided,  in  the  sixth  article  of  the  bill  of  rights,  that  no  ex¬ 
clusive  privilege  should  be  granted,  prospectively  or  condi¬ 
tionally,  but  solely  after  services  had  been  rendered  to  the 
public,  when  their  worth  could  be  duly  and  fairly  estimat¬ 
ed  ;  and  if  the  act  of  1784  had  contained  the  grant  of  any 
exclusive  privilege  as  claimed,  the  same  would  have  been  in 
direct  opposition  to  the  letter  and  spirit  of  that  article,  and  there¬ 
fore  void. 

They  deny,  that  the  erecting  of  Charles  river  bridge,  or  main¬ 
taining  of  the  same,  was  by  the  act  of  1784  contemplated  as 
a  highly  important  and  beneficial  service  to  be  rendered  to  the 
public,  but  allege  that  the  same  was  considered  as  an  undertak¬ 
ing  by  the  petitioners  on  their  own  account  ;  and  that  the  lan¬ 
guage  of  the  preamble  of  the  act,  inasmuch  as  the  same  is  a 
private  act,  is  to  be  taken  to  be  the  representation  of  the  petition¬ 
ers,  and  not  otherwise. 

They  deny,  that  it  manifestly  appears,  from  the  whole  of  the 
act,  that  the  bridge  was  intended  for  general  public  use  and 
benefit,  and  the  better  to  accommodate  the  public  travel,  and  as 
a  substitute  for  the  ferry. 

They  deny,  that  the  act  constituted  a  contract  between  the 
proprietors  and  the  government,  whereby  the  public  granted  ex- 
4 


26 


elusive  rights  as  a  valuable  and  beneficial  interest,  in  considera¬ 
tion  of  important  public  services  to  be  performed,  or  that  the 
government  necessarily  restrained  themselves  from  granting  any 
license  to  any  other  person  to  build  other  bridges  over  these 
navigable  waters. 

They  proceed  to  state  more  particularly  the  supposed  mis¬ 
representations  as  to  the  cost  of  building  and  maintaining  Charles 
river  bridge,  and  which  they  allege  render  void  the  act  of  1791 
so  far  as  relates  to  extension  of  the  time  for  taking  toll  ;  and 
they  insist,  that  if  the  act  is  not  absolutely  void  until  so  declared 
by  some  judicial  process  for  that  purpose  to  be  instituted,  yet 
that  when  the  plaintiffs  come  into  this  court  of  equity,  and  seek 
to  have  the  summary  and  extraordinary  powers  thereof  exercis¬ 
ed  in  support  of  a  claim  derived  under  the  act,  the  defendants 
have  a  right  to  show  that  the  claim  is  destitute  of  equity,  and 
therefore  ought  not  to  be  here  enforced. 

They  allege,  that  the  proprietors  of  Charles  river  bridge  did, 
by  their  acts  and  votes,  make  themselves  parties  to  the  pro¬ 
ceedings  of  the  general  court  in  1792,  and  submitted  their 
claims  to  the  decision  thereof,  and  were  bound  by  the  legislative 
declaration  before  mentioned. 

They  allege,  that  the  proprietors  of  Charles  river  bridge 
acquiesced  in  and  assented  to  the  decision  of  the  general  court 
as  to  the  construction  of  their  act  of  incorporation,  and  ought 
not  now  to  be  permitted  to  controvert  the  same  ;  and  they  in¬ 
sist  that  the  petitions,  remonstrance  and  reports,  made  to  the 
general  court,  are  rightly  connected  with  and  form  a  part  of 
the  private  acts  before  mentioned,  and  bear  directly  on  the 
questions  raised  in  the  bill  and  answer. 

They  deny,  that  immediately  after  passing  the  additional  act, 
the  provisions  mentioned  in  the  amended  bill  were  entered  in 
the  books  of  the  proprietors  of  Charles  river  bridge  in  testimo¬ 
ny  of  their  acceptance  of  the  same,  or  that  any  entry  thereof 
was  made  for  more  than  ten  years  after  that  time  ;  and  they 
deny  that  any  vote  was  passed  upon  the  subject  of  acceptance, 
until  four  months  next  preceding  the  expiration  of  the  forty 
years. 


27 


They  say,  that  the  proceedings  before  the  legislature  at  the 
session  when  the  act  incorporating  the  defendants  was  passed, 
(the  same  being  a  private  act,)  and  the  report  of  the  committee 
thereon,  and  the  acceptance  of  the  report,  constituted  a  decla¬ 
ration  by  the  legislature,  in  connexion  with  the  act,  that  public 
necessity  and  convenience  did  require  the  erection  of  another 
bridge,  in  like  manner  as  if  the  report  had  been  repeated  in  the 
preamble  of  the  act. 

They  say,  that  by  the  law  extending  the  equity  powers  of 
this  Court  to  cases  touching  waste  and  nuisance,  it  was  not  de¬ 
signed  nor  provided,  that  this  Court  should  decide  upon  the 
quality  or  nature  of  any  intended  act  of  any  person,  until  such 
act  had  been  performed,  nor  was  it  intended  to  embrace  cases 
of  constructive  nuisance  ;  and  they  therefore  allege,  that  wheth¬ 
er  a  free  bridge  would  or  would  not  affect  the  claim  of  the 
plaintiffs  as  injuriously  as  a  toll-bridge,  has  nothing  to  do  with 
the  matters  presented  by  the  bill  and  answer  for  the  decision  of 
this  Court. 

They  deny  that  any  bridge  has  been  erected  side  by  side  and 
nearly  parallel  to  the  bridge  of  the  plaintiffs,  or  that  permission 
has  been  given  by  the  defendants  to  any  persons  to  pass  free  on 
any  such  bridge,  as  hypothetically  stated  by  the  plaintiffs. 

They  insist,  that  notwithstanding  any  usage  or  practice  of 
courts  of  chancery  elsewhere,  the  matters  alleged  and  denied 
are  controversies  concerning  property,  and  which,  before  the 
forming  of  the  constitution  of  this  commonwealth,  had  not  been 
otherwise  decided  than  by  a  trial  by  jury. 

On  the  14th  of  November  1828,  (in  term  time,)  the  plain¬ 
tiffs  filed  a  supplemental  bill,  in  which  they  state,  that  since  the 
filing  of  their  complaint,  the  bridge  then  begun  to  be  built  by 
the  defendants  has  been  so  far  completed,  as  that  foot  passengers 
are  enabled  to  pass  thereon  from  Boston  to  Charlestown  and 
from  Charlestown  to  Boston,  and  that  great  numbers  have  in 
fact  so  passed  and  have  thereby  avoided  the  payment  of  the 
tolls  which  would  have  been  payable  to  the  plaintiffs,  had  those 
persons  passed  over  the  plaintiffs’  bridge  ;  and  they  further  state, 
that  the  Warren  bridge  has  been  nearly  finished  for  the  passage 
of  all  persons  with  horses,  cattle  and  carriages  of  every  descrip- 


28 


tion,  and  that  the  same,  as  they  believe,  will  soon  be  opened 
for  that  purpose. 

On  the  2d  of  December  1S28,  (in  term  time,)  the  defendants 
filed  a  plea  and  answer  to  the  supplemental  bill,  in  which  they 
admit  that  they  have  proceeded  in  erecting  the  Warren  bridge, 
and  that  it  has  been  so  far  completed,  as  that  foot  passengers 
are  enabled  to  pass  thereon  to  and  from  Boston  and  Charles¬ 
town  ;  and  they  further  say,  that  no  persons  have  passed  over 
by  their  permission  or  consent,  except  those  employed  by  them 
in  constructing,  building  and  superintending  the  bridge ;  and 
they  aver  that  they  have  prohibited  people  from  passing  the 
bridge,  until  it  should  be  opened  for  trave1. 

They  also  say,  that  as  to  the  matters  set  forth  in  the  bill  by 
way  of  supplement,  and  charged  to  have  taken  place  since  the 
institution  of  the  original  bill,  they  are  distinct  and  independent 
of  any  matters  charged  in  the  original  bill,  and  if  they  furnish 
any  ground  of  complaint,  they  constitute  different  causes  of  ac¬ 
tion  from  those  stated  in  the  original  bill,  and  cannot  be  taken 
into  consideration  in  connexion  with  the  original  bill. 

The  plaintiffs  filed  a  replication  on  the  19th  of  December 
1828  ;  which  was  in  term  time. 

At  a  session  of  the  Court  held  in  June  1829,  being  a  con¬ 
tinuation  of  March  term,  the  plaintiffs  demanded  that  the  cause 
should  be  heard  as  it  stood  in  order  on  the  docket.  This  was 
objected  to,  on  the  part  of  the  defendants.  Their  counsel  stated, 
that  if  filing  and  opening  depositions  in  the  clerk’s  office  is  to  be 
considered  as  equivalent  to  a  publication  in  the  English  chancery 
practice,  the  evidence  on  the  part  of  the  plaintiffs  was  published 
on  the  26th  of  March ;  that  since  then,  the  defendants  had  not 
had  sufficient  time  to  take  the  evidence  on  their  side  ;  and  they 
urged,  that  if  the  plaintiffs  wished  to  speed  the  cause,  they  ought 
to  have  obtained  a  rule  upon  the  defendants  for  the  publication 
of  their  depositions  ;  that  by  the  English  practice,  after  an  or¬ 
der  of  publication,  an  entire  vacation  is  given,  before  the  cause 
is  set  down  for  a  hearing,  and  there  must  be  a  subpoena  to  hear 
judgment,  returnable  before  the  cause  is  to  be  heard  ;  that  al¬ 
though  the  English  practice  is  not  adopted  here  in  all  its  minu¬ 
tiae,  yet  in  the  1st  of  the  “  Rules  for  the  regulation  of  the  prac- 


29 


tice  in  chancery  ”  this  “  Court  adopt,  as  the  outline  of  their 
practice,  the  practice  of  the  English  courts  of  equity,  so  far  as 
the  same  is  not  repugnant  to  the  constitution  and  laws  of  the 
commonwealth,  nor  to  the  rules  which  the  Court  shall  from  time 
to  time  make  Metcalf’s  Dig.  8S  ;  and  if  the  plaintiffs  ex¬ 
pected  that  the  cause  should  now  be  heard,  they  ought  to  have 
given  the  defendants  notice  ;  and  that  the  case  did  not  come 
within  the  7th  of  the  rules  above  mentioned,  inasmuch  as 
there  was  no  order  to  file  a  plea,  demurrer  or  answer  in  the  va¬ 
cation,  and  the  defendants  were  not  served  with  an  attested 
copy  of  the  bill,  and  no  replication  was  filed  in  the  same  vaca¬ 
tion.  1  Newland’s  Ch.  Pract.  294,  302  ;  Beames’s  Orders  in 
Ch.  319,  333,  336  ;  1  Harrison’s  Ch.  Pract.  497,  500,  523  ; 
1  Grant’s  Ch.  Pract.  191. 

The  counsel  for  the  plaintiffs  said  that  the  cause  was  brought 
to  an  issue  in  December,  and  the  parties  proceeded  to  take  their 
evidence,  in  order  to  be  ready  for  a  hearing  at  the  then  ensuing 
March  term  ;  and  they  relied  on  the  7th  rule  above  cited,  which 
provides,  that  when  a  bill  is  filed  in  term  time  and  an  answer  in 
the  vacation,  “  the  plaintiff  may  file  his  replication  in  the  clerk’s 
office  in  the  same  vacation  ;  and  upon  giving  notice  of  such  re¬ 
plication  to  the  defendant,  not  less  than  thirty  days  before  the 
ensuing  term,  the  parties  may  proceed  to  take  the  examination 
of  their  witnesses,  so  that  the  cause  may  be  heard  and  deter¬ 
mined  at  the  ensuing  term.  Or  if  the  plaintiff  shall  elect  to 
proceed  to  a  hearing  of  the  cause  on  the  bill  and  answer,  he 
may  give  notice  thereof  to  the  defendant,  not  less  than  thirty 
days  before  the  ensuing  term,  and  the  cause  shall  be  then  heard 
and  determined  accordingly.” 

Per  Curiam.  If  we  were  bound  by  the  rules  of  the  Court 
of  Chancery  in  England,  the  plaintiffs  would  not  be  entitled  to 
a  hearing  at  this  time.  There,  when  a  cause  is  set  down  for 
hearing,  a  subpoena  to  hear  judgment  is  to  be  served  upon  the 
adverse  party  ten  days  before  the  day  of  hearing,  if  he  lives 
within  twenty  miles  of  London,  and  fourteen  days,  if  beyond 
that  distance. 

But  these  rules  are  not  in  force  here.  We  have  not  adopted 
them  formally,  and  there  has  been  no  usage  from  which  their 


30 


adoption  might  be  inferred.  It  has  been  an  object  with  us  to 
simplify  chancery  practice  ;  which  can  be  effected  only  by 
avoiding  too  much  regulation.  We  require  only  that  proper 
notice  shall  be  given,  according  to  the  exigency  of  the  case  ; 
so  as  to  hasten  the  proceedings  as  much  as  possible,  without 
prejudice  to  a  party  vfor  want  of  time.  The  construction  given 
by  the  counsel  for  the  defendants,  to  the  1st  of  our  rules,  is 
superseded  by  the  7th  rule.  Notice,  as  therein  mentioned, 
being  given  thirty  days  before  the  ensuing  term,  a  case  in 
chancery  stands  for  hearing  like  any  other  case,  and  is  subject 
to  motions  like  other  cases.  The  case  before  us  comes  within 
the  equity  of  this  rule. 

The  Court  further  remarked,  that  it  was  not  necessary  to 
have  a  particular  rule  for  the  publication  of  testimony.  The 
filing  and  opening  of  depositions  in  the  clerk’s  office  is  equiva¬ 
lent  to  a  publication.  They  will  be  on  the  files  and  open  to  the 
inspection  of  the  parties. 

The  defendants  afterward  claimed  “  the  right  secured  to  them 
by  the  constitution  of  this  commonwealth,  of  a  trial  by  jury  of 
•the  whole  matters  in  controversy,  it  never  having  been,  before 
the  adoption  of  the  constitution,  otherwise  used  or  practised  in 
this  commonwealth  in  such  cases ;  and  they  deny  that  the 
legislature  have  the  power  to  take  from  them  the  right  to  such 
general  trial,  or  to  authorize  the  Court  to  select  particular  facts 
and  direct  issues  thereon.”  They  designated  several  points  as 
indispensably  requiring  the  intervention  of  a  jury. 

Fletcher  and  Aylwin  rested  this  claim,  as  a  matter  of  right, 
on  the  15th  article  of  the  declaration  of  rights;  which  pro¬ 
vides,  “  that  in  all  controversies  concerning  property,  and  in  all 
suits  between  two  or  more  persons,  except  in  cases  in  which  it 
has  heretofore  been  otherwise  used  and  practised,  the  parties 
have  a  right  to  a  trial  by  a  jury  ;  and  this  method  of  pro¬ 
cedure  shall  be  held  sacred,  unless,  in  causes  arising  on  the 
high  seas,  and  such  as  relate  to  mariners’  wages,  the  legislature 
shall  hereafter  find  it  necessary  to  alter  it.” 

But  as  a  matter  of  discretion,  the  Court  would  refer  these 
questions  to  a  jury.  Even  in  England,  where  undoubtedly  the 
chancellor  may  determine  the  facts,  the  power  is  exercised 


31 


“  very  tenderly  and  sparingly.”  St.  Paul’s  v.  Morris ,  9  Ves. 
168;  2  Madd.  Ch.  Pr.  364. 

Webster  and  Shaw,  contra.  In  cases  in  which,  before  the 
adoption  of  the  constitution,  chancery  jurisdiction  was  given 
to  this  Court,  the  whole  power  of  an  English  court  of  chancery 
was  exercised.  There  was  no  trial  by  jury,  as  a  matter  of 
right ;  so  that  cases  in  chancery  are  within  the  exception  in  the 
declaration  of  rights.  Thus,  in  chancering  the  penalty  of  a 
bond,  after  forfeiture  confessed  or  found,  the  Court  determined 
the  facts  ;  as  the  fact  of  payment,  &tc. ;  though  they  might,  in 
their  discretion,  direct  such  facts  to  be  determined  by  a  jury. 

If  the  defendants  could,  as  a  matter  of  right,  deny  the  bill 
generally,  and  have  a  trial  by  jury,  this  claim  should  have  been 
made  sooner.  By  answering,  they  have  waived  the  right.  In 
chancery  the  court  get  the  facts  from  the  party  himself,  and  if 
he  is  compelled  to  be  a  witness  himself,  the  trial  by  jury,  in  the 
common  understanding  of  the  terms,  is  taken  away. 

This  is  a  motion,  before  a  hearing,  for  issues  to  try  matters  of 
fact.  It  is  a  question  of  practice  merely,  and  does  not  involve 
a  consideration  of  the  construction  to  be  given  to  the  declara¬ 
tion  of  rights.  There  is  nothing  in  the  English  practice,  of 
having  a  hearing  before  issues  are  directed,  that  is  inconsistent 
either  with  the  constitution  or  with  our  own  practice.  The 
usual  course,  in  an  equity  suit,  is  to  hear  the  pleadings  and 
evidence,  and  observations  upon  them,  and  then,  if  the  court 
see  fit,  to  direct  an  issue.  This  is  always  done  by  an  interlo¬ 
cutory  decree  upon  the  hearing,  and  is  a  matter  of  discretion. 
The  decree  states  what  facts  shall  be  admitted  and  what  evi¬ 
dence  shall  be  received,  with  other  particulars  relating  to  the 
trial.  2  Madd.  Ch.  Pr.  363  ;  1  Newl.  Ch.  Pr.  350  ;  1 
Grant’s  Ch.  Pr.  210;  2  Anstruth.  Rep.  480;  2  Fowler’s 
Exch.  Pr.  194;  Dale  v.  Roosevelt,  6  Johns.  Ch.  R.  255  ; 
Le  Guen  v.  Gouverneur,  1  Johns.  Cas.  436.  There  are  but 
two  courses  to  be  pursued  ;  the  Court  must  either  hear  the 
case,  and  ascertain  that  there  is  a  substantial  controversy  in 
respect  to  an  important  fact  which  should  be  determined  by  a 
jury,  or  they  must  refer  the  whole  case  to  the  jury,  making 
them  chancellors  under  the  guidance  of  the  Court. 


32 


Fletcher,  in  reply,  said  that  every  thing  that  is  desirable  in  a 
court  of  chancery,  may  be  obtained,  without  violating  the  con¬ 
stitution.  3  Bl.  Com.  381.  Although  before  the  constitution 
was  adopted,  certain  cases  in  chancery  may  have  been  heard 
without  a  jury,  it  does  not  follow  that  the  legislature  may  with¬ 
draw  from  a  jury  all  cases  which  are  subsequently  made  mat¬ 
ters  of  chancery  jurisdiction. 

Webster.  Cases,  in  the  15th  article,  means  classes  of  cases, 
and  cases  in  chancery  composed  one  of  those  classes. 

Fletcher.  It  is  said  we  have  waived  our  right  to  a  trial  by 
jury,  by  filing  an  answer.  We  claim  it  in  the  answer  itself. 
Had  we  previously  insisted  on  such  trial,  there  would  have  been 
no  issue  for  the  jury.  We  have  a  justification  ;  must  we  not 
plead  it?  If  not,  what  have  we  to  try  ?  The  rules  in  England 
are  not  applicable  here  in  their  full  extent,  but  the  Court  regard 
the  spirit  of  them  as  affected  by  our  laws.  There,  the  chancel¬ 
lor,  having  power  to  determine  the  facts,  directs  an  issue  of  his 
own  motion  and  to  satisfy  his  conscience,  and  he  must  hear  the 
cause  first ;  here,  the  party  claims  a  trial  by  jury  as  secured  to 
him  by  the  constitution.  The  Court  can  examine  the  pleadings 
and  the  suggestions  of  the  parties,  to  see  if  there  are  any,  and 
if  any,  what  questions  to  be  tried  by  a  jury.  [ Parker  C.  J.  Sup¬ 
pose  issues  shall  be  framed  on  all  the  questions  in  your  motion ; 
both  parties  have  taken  testimony  in  writing  ;  when  you  go  be¬ 
fore  a  jury,  is  all  this  evidence  to  be  received,  some  of  which  is 
different  from  the  evidence  commonly  used  in  jury  trials?] 
That  is  a  question  to  be  determined  at  the  trial.  It  is  not  in¬ 
consistent  with  a  trial  by  jury,  to  put  a  party  on  his  oath.  Our 
statutes  provide  for  it  already  in  some  cases. 

Webster  insisted,  that  the  proper  time  for  the  defendants  to 
demand  a  trial  by  jury,  was  upon  the  rule  to  file  an  answer. 
They  ought  then  to  have  objected  to  putting  in  an  answer.  An¬ 
swering  with  a  protestando  is  the  same  thing  as  answering  with¬ 
out  one,  and  is  a  waiver  of  a  trial  by  jury  as  a  matter  of  right. 

Parker  C.  J.  delivered  the  opinion  of  the  Court.  We  are 
brought  to  the  consideration  of  a  question  of  high  importance  to 
the  partial  and  limited  system  of  equity  established  by  the  legis¬ 
lature,  with  very  little  time  and  opportunity  to  give  it  the  atten- 


33 


tion  it  deserves.  It  is  one  of  the  most  obvious  disadvantages  of 
the  present  mode  of  administering  the  power,  that  those  who 
are  charged  with  it  are,  by  incessant  engagements  in  the  ordi¬ 
nary  course  of  their  functions,  rendered  in  a  measure  disquali¬ 
fied  for  the  exercise  of  duties,  which,  to  be  well  discharged,  re¬ 
quire  the  undivided  application  of  a  single  mind.  We  however 
must  submit  to  the  ordinances  of  higher  powers,  and  be  con¬ 
tent  with  discharging  our  duty  honestly,  until  the  legislature,  in 
their  wisdom,  shall  see  fit  to  make  a  better  disposition  of  this 
branch  of  judicial  power. 

The  question  proposed,  in  its  broadest  terms,  strikes  at  the 
root  of  a  system  of  equity  in  this  commonwealth,  as  hitherto  ad¬ 
ministered  ;  for  if,  upon  a  bill  in  chancery,  the  respondent  has 
a  right  to  claim  that  the  whole  case  shall  be  tried  by  jury,  it  is 
obvious  that  these  cases  are  brought  back  again  to  common  law 
jurisdiction,  with  some  increase  of  power  in  the  Court,  and 
some  change  in  the  form  of  trial,  but  with  little  of  the  character 
of  chancery  proceedings  as  practised  in  England,  in  the  Courts 
of  the  United  States,  or  of  any  of  the  states  which  have  es¬ 
tablished  such  a  system.  Whether  this  would  be  an  improve¬ 
ment  or  not,  we  are  not  prepared  to  say ;  but  it  would  be  clear¬ 
ly  contrary  to  the  declared  intention  of  several  successive  legis¬ 
latures  since  the  year  1818,  when  the  first  statute  was  enacted 
giving  to  the  Court  jurisdiction  in  matters  of  equity  ;  for  in  that, 
and  in  all  the  statutes  since  passed,  though  the  subjects  referred 
to  the  Court  are  specific,  the  authority  over  them  is  as  unlimit¬ 
ed  as  the  Lord  Chancellor  in  England  possesses,  for  we  are 
referred  to  the  rules  and  proceedings  in  chancery,  as  the  guide 
and  only  limitation  of  our  authority. 

The  motion  now  made  is  for  a  trial  by  jury,  and  it  is  insisted 
on  as  a  right  secured  by  the  declaration  of  rights,  prefixed  to 
the  constitution  and  making  a  part  thereof. 

The  article  relied  on  is  in  no  ambiguous  language ;  nothing 
could  more  explicitly  declare  the  intention  of  the  people,  that 
with  the  exceptions  therein  contained,  the  right  to  trial  by  jury 
should  never  be  invaded.  Now  the  case  presented  by  this  bill 
is  a  controversy  concerning  property,  and  it  is  also  a  suit  be¬ 
tween  parties  ;  so  that  unless  it  is  a  case  in  which,  at  the  time 

5 


34 


of  the  adoption  of  the  constitution,  a  different  mode  of  trial  could 
be  said  to  have  been  practised,  it  is  most  clearly  included  in 
the  article.  But  we  wish  not  to  decide  this  question  now,  be¬ 
lieving  it  not  to  be  necessary,  and  that  further  time  might  ena¬ 
ble  us  to  show  that  the  case  comes  within  the  practice.  We  find 
that  the  colonial  legislature,  in  the  year  1G85,  vested  in  the  county 
courts  as  ample  jurisdiction  in  matters  of  equity,  as  exists  in 
the  courts  of  chancery  in  England.  That  statute  continued  in 
force  until  the  grant  of  the  provincial  charter  in  1691,  by  which 
the  colonial  statute  was  probably  considered  to  be  repealed. 
After  the  charter,  in  1 692  the  whole  chancery  power  was  vest¬ 
ed  in  the  governor  and  eight  of  the  council,  with  a  power  to 
delegate  it  to  a  chancellor  to  be  appointed  by  the  governor. 
The  next  year  the  legislature,  declaring  that  this  mode  of  ad¬ 
ministering  the  power  was  found  in  practice  to  be  inconvenient, 
repealed  the  law,  and  transferred  the  power  to  three  commis¬ 
sioners  ;  and  in  the  succeeding  year  this  tribunal  was  supersed¬ 
ed,  and  a  high  court  of  chancery  was  established.  We  have 
it  from  tradition,  and  I  have  seen  it  somewhere  in  history,  that 
these  several  acts  became  null  and  void  by  reason  of  the  nega¬ 
tive  of  the  king,  which  was  exercised  according  to  the  charter, 
within  three  years  after  their  enactment ;  they  were  however  in 
force,  according  to  the  provisions  of  the  charter,  until  the  veto 
of  the  king  was  made  known  to  the  constituted  authorities  here. 
Now  whether  the  framers  of  the  constitution,  and  the  people, 
had  reference  to  those  former  chancery  tribunals,  when  they 
adopted  the  exception  to  the  general  provision  in  the  15th  ar¬ 
ticle,  may  admit  of  question  ;  we  are  inclined  to  think,  how7- 
ever,  that  the  word  “  heretofore,”  in  the  exception,  could  hard¬ 
ly  be  applicable  to  a  practice  which  had  ceased  to  exist  nearly 
a  century  before  the  constitution  was  adopted.  In  regard  to 
probate  cases,  and  suits  for  redemption  of  mortgages,  the  prac¬ 
tice  of  trying  facts  by  the  court  instead  of  the  jury,  had  con¬ 
tinued  down  to  the  adoption  of  the  constitution.  But  we  say 
again,  that  we  do  not  wish  to  decide  this  question  now,  any  fur¬ 
ther  than  to  declare,  that  a  reasonable  construction  of  the  15th 
article  does  not  require  that  a  suit  in  chancery  shall  be  tried 
just  as  a  suit  at  common  law  would  be,  and  that  there  is  no  ne- 


35 


cessity  that  the  whole  case  shall  be  put  to  the  jury.  The  most 
that  can  be  made  of  the  article  is,  that  all  controverted  facts 
deemed  essential  to  the  fair  and  full  trial  of  the  case,  shall  be 
passed  upon  by  the  jury,  if  the  parties  or  either  of  them  re¬ 
quire  it.  And  whether  the  facts  proposed  to  be  so  tried  are 
essential  or  not,  must  of  necessity  be  determined  by  the  court. 
There  may  be  many  facts  stated  in  a  bill  and  denied  in  an  answer, 
and  also  facts  alleged  in  the  answer,  which  are  wholly  immate¬ 
rial  to  the  merits  of  the  case,  and  such  facts  the  court  may  re¬ 
fuse  to  put  to  the  jury  ;  just  as  in  an  action  at  common  law,  if 
a  party  offers  to  prove  facts  which  are  irrelevant,  the  court  may 
reject  the  proof;  and  as  immaterial  issues,  even  after  verdict, 
may  be  rejected  as  nugatory.  The  right  of  the  party  to  go  to 
the  jury  is  preserved,  if  he  is  allowed  that  course  in  regard  to  all 
such  facts  as  have  a  bearing  upon  the  issue  for  trial. 

But  it  is  objected,  that  according  to  the  course  of  proceed¬ 
ings  in  chancery,  the  motion  is  premature,  because  an  issue  can 
be  directed  only  on  a  hearing,  for  it  cannot  be  determined  of 
what  facts  the  issues  shall  consist,  until  after  a  hearing  shall 
have  taken  place,  and  the  evidence  is  looked  at  which  is  ad¬ 
duced  in  support  of  the  facts. 

If  it  were  true,  that  issues  to  the  country  should  be  ordered 
only  when  the  court,  on  inspecting  the  evidence,  found  a  diffi¬ 
culty  in  deciding  the  fact,  this  position  would  be  maintained  ; 
but  certainly  a  full  hearing  is  not  necessary  in  order  to  come  to 
the  result ;  for  if  by  inspecting  the  bill  and  answer  it  should  be 
perceived  that  there  are  important  facts  asserted  and  denied, 
we  do  not  see  why  issues  may  not  be  directed  as  soon  as  the 
court  shall  determine,  in  their  discretion,  that  those  facts  shall 
be  so  ascertained  :  and  certainly  much  time  may  be  saved  by 
this  course  of  proceeding.  Now  in  exercising  discretion  upon 
an  application  for  an  issue,  the  Court  cannot  but  have  some  re¬ 
gard  to  the  expression  of  the  public  will  in  the  declaration  of 
rights  on  this  subject  of  a  trial  by  jury,  so  as  more  carefully  to 
preserve  the  general  principle,  although  they  may  doubt  of  the 
existence  of  a  right.  This  Court  cannot  be  desirous  of  enlarg¬ 
ing  its  jurisdiction,  or  of  assuming  the  trial  of  facts  in  any  case, 
and  certainly  not  in  the  exercise  of  a  jurisdiction  reluctantly 


36 


given  by  the  legislature  and  by  no  means  coveted  by  us.  In 
most  cases  therefore,  when  a  trial  by  jury  shall  be  asked  for,  it 
will  probably  be  granted,  unless  it  shall  manifestly  appear  that 
the  object  of  pursuing  that  course,  in  the  party  applying,  is  to 
delay  or  embarrass  the  cause'by  putting  to  the  jury  issues  whol¬ 
ly  immaterial.  If  however  it  is  still  insisted,  that  a  hearing  to 
some  extent  should  be  first  had,  in  order  to  understand  the  per¬ 
tinency  of  the  facts  sought  to  be  tried,  we  will  hear  counsel 
further  upon  that  point. 

We  have  looked  over  the  numerous  points  selected  by  the 
counsel  as  proper  subjects  of  an  issue,  and  compared  them  with 
the  bill  and  answer,  and  are  satisfied  that  some  of  them  are  of 
a  character  suitable  for  the  jury,  if  the  parly  requires  it,  though 
in  regard  to  most  of  them  the  evidence  will  probably  be  of  a 
nature  to  be  judged  of,  in  regard  to  its  legal  effect,  by  the 
court,  rather  than  the  jury  ;  such  as  statutes,  records,  8zc. ;  and 
in  regard  to  these,  it  will  be  a  matter  of  discretion  in  the  coun¬ 
sel,  whether,  after  all,  a  trial  by  jury  will  be  of  any  use.  There 
are  other  points  suggested,  which  we  deem  wholly  immaterial 
to  the  rights  of  the  parties  and  the  decision  of  the  cause,  and 
these  will  not  require  an  issue. 

If  a  trial  by  jury  shall  be  still  claimed,  we  think  it  our  duty 
to  provide  for  such  a  trial  as  soon  as  possible.  We  can  see 
no  good  reason  for  delay.  The  parties  are  at  liberty,  if  they 
agree,  to  use  the  depositions  which  have  been  taken  in  the 
cause  ;  if  they  do  not,  they  know  the  facts  to  be  proved  and  the 
witness  by  whom  it  is  expedient  to  prove  them. 

The  Court  proceeded  to  state  which  of  the  questions  proposed 
by  the  defendants  were  proper  to  be  tried  by  a  jury,  and  which 
were  not ;  giving  liberty  however  to  counsel  to  object  to  the 
discrimination. 

The  St.  1791,  c.  62,  §  9,  provides,  “that  in  consideration  of 
the  privileges  in  this  act  granted  to  the  proprietors  of  Charles 
river  bridge,  the  said  proprietors  shall  relinquish  the  additional 
toll  on  the  Lord’s  day,  from  and  after  the  passing  of  this  act ;  ” 
and  one  of  the  questions  proposed  to  be  submitted  to  a  jury 
was,  whether  this  provision  had  been  complied  with.  The 
Court  said,  that  this  was  not  proper  to  be  tried  ;  because  the 


37 


provision  was  only  a  condition  subsequent,  the  non-performance 
of  which  might  be  a  ground  of  forfeiture  upon  proper  process 
instituted  by  the  government,  but  could  not  be  taken  advantage 
of  by  a  stranger. 

Another  question  was,  whether  the  proprietors  of  Charles 
river  bridge  procured  the  extension  of  their  charter  by  the  act 
of  1791,  by  means  of  false  suggestions  and  false  and  colourable 
representations  to  the  legislature.  This  question,  the  Court 
said,  was  immaterial.  If  fraud  was  practised,  the  charter  could 
be  revoked  only  upon  a  process  of  quo  warranto.  As  the  cor¬ 
poration  had  been  suffered  to  exist  forty  years,  and  had  been 
found  beneficial,  the  government  might  be  willing  to  let  it  con¬ 
tinue,  even  if  an  extension  of  the  charter  had  been  fraudulently 
obtained.  The  defendants  cannot  take  advantage  of  the  sup¬ 
posed  false  representations.  A  man  passing  over  the  bridge 
might  as  well  refuse,  on  the  same  ground,  to  pay  the  toll.  If 
the  question  had  come  up  in  an  action  on  the  case  against  the 
plaintiffs  for  a  nuisance,  it  would  have  been  considered  irrele¬ 
vant.  Further,  in  the  act  incorporating  the  proprietors  of  the 
Warren  bridge  the  charter  of  the  plaintiffs  is  recognised,  and 
some  indemnity  is  provided  for  them.  So  that  the  question  of 
fraud  must  be  thrown  entirely  out  of  the  case. 

After  this  opinion  was  given,  the  defendants  waived  their  right 
to  a  trial  by  jury,  and  in  October  1S29  the  cause  was  heard  up¬ 
on  the  merits. 

By  the  evidence  it  appeared,  that  at  a  court  of  assistants  held 
at  Boston  November  9,  1630,  it  was  ordered,  “that  whosoever 
shall  first  give  in  his  name  to  Mr.  Governour,  that  he  will  un¬ 
dertake  to  set  up  a  ferry  betwixt  Boston  and  Charlton,  and  shall 
begin  the  same  at  such  time  as  Mr.  Governour  shall  appoint, 
shall  have  1  d.  for  every  person,  and  1  d.  for  every  hundred 
weight  of  goods,  he  shall  so  transport.” 

1631.  “Edward  Converse  hath  undertaken  to  set  up  a  ferry 
betwixt  Boston  and  Charlestown,  for  which  he  is  to  have  two 
pence  for  every  single  person,  and  one  penny  a  piece  if  there 
be  two  or  more.” 

November  5,  1633.  “  Mr.  Richard  Brown  is  allowed  by  the 

court  to  keep  a  ferry  over  Charles  river  against  his  house,  and  is 


38 


to  have  two  pence  for  every  single  person,  he  so  transports,  and 
one  penny  a  piece  if  there  be  two  or  more.” 

At  the  general  court  held  at  Newtown,  May  6,  1635,  “  it  is 
ordered,  that  there  shall  be  a  ferry  set  up  on  Boston  side,  by 
Wind-mill  hill,  to  transport  men  to  Charlton  and  Winnesirnet, 
upon  the  same  rates  that  the  ferrymen  at  Charlton  and  Wene- 
semet  transport  men  to  Boston.” 

November  2,  1 637,  the  ferry  between  Boston  and  Charles¬ 
town  is  referred  to  the  governour  and  treasurer,  to  let  at  40 1. 
per  annum ,  beginning  the  first  of  December,  and  from  thence 
for  three  years. 

Evidence  was  given  of  an  instrument  in  the  hand-writing  of 
governour  Winthrop,  with  an  apparently  original  signature  of 
“  Edward  Converse,”  dated  November  28,  1637,  stating  that 
“  the  governour  and  treasurer,  by  order  of  the  general  court, 
did  demise  to  Edward  Converse  the  ferry  between  Boston  and 
Charlestown,  to  have  the  sole  transporting  of  passengers  and 
cattle  from  one  side  to  the  other,  for  three  years  from  the  first 
day  of  the  next  month,  for  the  yearly  rent  of  forty  pounds,  Sic. 
provided  that  he  see  it  be  well  attended  and  furnished  with  suf¬ 
ficient  boats,  and  that  so  soon  as  may  be  in  the  next  spring,  he 
set  up  a  convenient  house  on  Boston  side,  and  keep  a  boat  there 
as  need  shall  require ;  and  he  is  allowed  to  take  his  wonted 
fees,  viz.”  Sic. 

At  a  general  court  held  September  6,  1638,  “there  is  a  fer¬ 
ry  appointed  from  Boston  to  Winnetsemet,  Noddle’s  Island  and 
the  ships — the  person  to  be  appointed  by  the  magistrates  of  Bos¬ 
ton.” 

In  an  ordinance  respecting  Harvard  College,  to  which  in  the 
edition  of  the  laws  published  in  1672  are  affixed  the  dates  of 
1636,  1640  and  1642,  it  is  recited  that  “  there  is  a  college,  &c. 
for  the  encouragement  whereof  this  court  hath  given  the  sum  of 
four  hundred  pounds,  and  also  the  revenue  of  the  ferry  betwixt 
Charlestown  and  Boston.” 

At  a  general  court  held  October  7,  1640,  “  the  ferry  between 
Boston  and  Charlestown  is  granted  to  the  college.” 

At  a  session  in  October  1644,  “  it  is  ordered,  that  the  magis¬ 
trates  and  deputies  of  the  court,  their  passages  over  the  ferries 


39 


together  with  their  necessary  attendants  shall  be  free,  not  paying 
any  thing  for  it,  except  at  such  ferries  as  are  appropriated  to 
any,  or  are  rented  out  and  are  out  of  the  country’s  hands,  and 
there  it  is  ordered  that  their  passages  shall  be  paid  by  the  coun¬ 
try.” 

At  a  general  court  in  1646,  in  answer  to  the  petition  of  James 
Heyden,  with  his  partners,  ferrymen  of  Charlestown,  it  is  de¬ 
clared,  that  by  “  necessary  attendants  ”  in  the  last  order,  is  meant 
a  man  and  a  horse,  and  not  the  families  of  the  magistrates  or 
deputies. 

Harvard  College  was  made  a  corporation  in  May  1650. 

At  a  general  court  held  October  15,  1650,  “in  answer  to 
the  petition  of  Henry  Dunster,  president  of  Harvard  College, 
respecting  the  hundred  pounds  due  from  the  country  to  the  col¬ 
lege,  and  rectifying  the  ferry-rent,  which  belongs  to  the  college,” 
it  is  ordered,  that  “  when  the  lease  is  expired,  it  shall  be  in  the 
liberty  and  power  of  the  president,  in  behalf  and  for  the  be¬ 
hoof  of  the  college,  to  dispose  of  the  said  ferry  by  lease,  or  oth¬ 
erwise  making  the  best  and  most  advantage  thereof  to  his  own 
content,  so  as  such  he  disposeth  it  unto  perform  the  service  and 
keep  sufficient  boats  for  the  use  thereof  as  the  order  of  court 
requires.” 

In  October  1654,  the  general  court,  reciting,  that  “  at  present 
the  work  of  the  college  hath  been  several  ways  obstructed,  and 
seems  yet  also  at  present  for  want  of  comfortable  maintenance 
for  the  encouragement  of  a  president,”  and  “  fearing  lest  we 
should  show  ourselves  ungrateful  to  God,  or  unfaithful  to  pos¬ 
terity,  if  so  good  a  seminary  of  knowledge  and  virtue  should  fall 
to  the  ground  through  any  neglect  of  ours,” — order,  “  that  (be¬ 
sides  the  profit  of  the  ferry  formerly  granted  to  the  college, 
which  shall  be  continued)  there  shall  be  yearly  levied  by  addi¬ 
tion  to  the  country  rate,  one  hundred  pounds,  to  be  paid  by  the 
treasurer  of  the  country  to  the  college  treasurer,  &c.  and  this  to 
continue  during  the  pleasure  of  the  country.” 

At  a  general  court  in  May  1655,  “  in  answer  to  the  petition  of 
Mr.  Charles  Chancey,  president  of  Harvard  College,  &ic.  the 
treasurer  is  desired  to  disburse  the  sum  of  30L  to  furnish  his 
necessary  occasions,  to  be  repaid  out  of  the  first  rent  of  the  fer¬ 
ry.” 


40 


By  Prov.  St.  6  TV.  M.  c.  6,  (Anc.  Charters  &ic.  280,) 
“  for  regulating  ferries,”  it  is  provided,  “  that  boats  be  kept  on 
either  side  of  the  water,  at  Charlestown  ferry,  &c.  the  ferrymen 
on  each  side  to  have  a  separate  interest;  and  that  the  ferry  be 
not  from  henceforth  leased  out  otherwise.  And  all  the  mem¬ 
bers  of  the  general  assembly  shall  be  ferriage  free  at  all  ferries, 
in  their  passirtg  to  and  from  the  assembly,  and  shall  be  trans¬ 
ported  without  any  unnecessary  delay,  on  pain  of  forfeiting 
twenty  shillings.” 

By  Prov.  St.  8  Will.  3,  c.  6,  (Anc.  Charters  &c.  294,)  it  is 
provided,  “  that  when  and  so  often  as  it  shall  happen,  that  the 
boats  employed  for  the  ferry  betwixt  Boston  and  Charlestown 
shall  be  on  the  same  shore,  upon  the  landing  of  the  second  boat, 
the  first  shall  forthwith  put  off  and  pass  over  to  the  other  side, 
passengers  or  no  passengers,”  on  penalty,  &.C. 

The  Prov.  St.  9  Ann.  c.  1,  “for  the  better  regulating  the 
ferry  over  Charles  river,  betwixt  Boston  and  Charlestown,” 
after  reciting  that  several  petitions  had  been  offered  to  the  gen¬ 
eral  court,  signed  by  many  of  the  inhabitants  of  Charlestown, 
Cambridge  and  other  towns,  complaining  of  neglect  of  due  atten¬ 
dance  of  the  ferry,  “  and  having  thereupon  been  attended  by 
the  treasurer  of  the  college  (the  profits  and  revenues  of  the 
said  ferry  being  granted  to  Harvard  College  in  Cambridge)  and 
seen  the  lease  by  him  made  of  the  said  ferry  for  several  years 
yet  to  come, — for  redress  of  the  grievances  complained  of,  and 
to  the  intent  the  said  ferry  may  be  accommodated  for  the  good 
and  service  of  the  province,  and  of  her  Majesty’s  subjects  with¬ 
in  the  same,  much  increased  over  what  they  were  at  the  first 
settling  of  the  ferry,  now  become  a  great  passage  for  transpor¬ 
tation  ;  which,  that  it  may  be  done  with  the  more  ease  and  speed, 
the  said  lease  or  leases  notwithstanding  :  ” — enacts,  that  there 
shall  be  “  three  sufficient  suitable  boats,”  and  prescribes  the 
mode  and  time  in  which  they  shall  continue  plying  and  the  rates 
of  ferriage  ;  “  the  said  three  boats  to  be  three  several  separate 
interests,  not  all  of  one  town.” 

The  first  book  of  the  college  records  is  said  to  have  been 
destroyed  when  the  library  was  burnt,  in  1764.  The  first  en¬ 
try  on  the  subsisting  records  relative  to  the  ferry,  is  of  a  meet- 


41 


ing  of  the  corporation  on  August  4,  1701,  when  it  was  voted, 
“  that  the  ferry  at  Charlestown  be  let  to  John  Russell,”  &zc. 

At  a  meeting,  April  7,  1713,  after  a  recital  that"  a  motion 
has  been  made  in  the  general  court  for  the  building  a  bridge 
over  Charlestown  ferry,  and  a  committee  appointed  thereupon 
to  receive  proposals,  &c.  it  is  voted — “  That  the  president,  the 
treasurer,  Sic.  be  desired  to  represent  and  insist  upon  the  right 
which  the  college  hath  in  and  to  the  profits  of  the  said  ferry, 
before  the  said  committee,  and  as  they  shall  find  it  needful  and 
proper,  before  the  general  assembly.” 

At  a  meeting,  October  27,  1713,  it  was  voted,  that  whereas 
the  general  assembly  have  directed  Dr.  Clark  and  a  commit¬ 
tee  of  the  house  of  representatives,  upon  a  proposal  to  erect  a 
bridge  over  the  ferry,  to  confer  with  the  college  upon  that  affair, 
the  president  &c.  be  a  committee  to  confer  with  Dr.  Clark,  &c. 

At  a  meeting,  February  10,  1725,  the  corporation  vote  that 
each  of  the  boats  be,  for  three  years  following  the  first  of  May 
next,  leased  to  one  person  only,  instead  of  two,  as  it  then  was. 

At  a  meeting,  April  1,  1728,  it  is  voted,  that  the  treasurer  be 
desired  to  inquire  what  will  be  the  expenses  of  repairing  with 
smooth  stones  the  ferry-way  on  the  Boston  side. 

At  meetings,  on  November  17,  1777,  May  5,  1778,  and  No¬ 
vember  28,  1779,  votes  were  passed,  directing  the  treasurer  to 
settle  the  accounts  for  repairs  on  the  ferry-ways,  fixing  the  rent 
of  the  ferry  and  the  rates  of  ferriage. 

At  a  meeting,  October  1 1 ,  1780,  it  was  voted,  “  that  the  treas¬ 
urer  be  directed  to  order  the  necessary  repairs  for  sheds  on 
each  side  of  the  ferry,  the  cost  to  be  hereafter  laid  before  the 
general  court  for  allowance,” 

On  the  16th  of  May  1781,  an  act  (St.  17S0,  c.  42,)  was 
passed,  “  for  the  better  government  and  regulation  of  the  ferry 
between  Boston  and  Charlestown,  and  for  repealing  the  laws 
heretofore  made  for  that  purpose.”  This  statute  requires, 
among  other  things,  that  there  shall  be  four  boats  ;  that  each 
boat  shall  have  a  separate  interest  ;  that  no  person  shall  be  ap¬ 
pointed  by  the  corporation  of  Harvard  College  a  master  ferry¬ 
man,  unless  he  shall  be  previously  approved  as  a  suitable  per¬ 
son  by  the  selectmen  of  Charlestown  ;  that  upon  notice  from 

6 


42 


those  selectmen  of  the  misconduct  of  any  of  the  ferrymen  or 
owners  of  the  boats,  the  corporation  shall  within  sixty  days 
discharge  such  ferryman  or  owner  from  any  employment  in  the 
ferry,  and  in  case  of  their  neglect  or  refusal  so  to  do,  shall  for¬ 
feit  a  sum  equal  to  the  rent  of  the  ferry  for  the  then  current 
year  ;  that  whenever  the  corporation  shall  make  any  alteration 
in  the  rales  of  ferriage,  they  shall  publish  the  rates  by  them 
established,  in  one  or  more  of  the  Boston  newspapers ;  and 
that  there  shall  be  made  and  kept  in  good  repair,  a  convenient 
and  comfortable  shed,  and  suitable  ways  for  passing  to  and 
from  the  ferry-boats,  at  the  landing-place  on  each  side  of  the 
river,  at  the  charge  of  the  corporation. 

On  February  17,  1786,  upon  an  application  of  the  ferrymen 
for  an  abatement  of  rent,  the  college  voted,  “  that  they  be  excused 
from  paying  any  rent  for  the  last  three  mouths  preceding  the 
opening  of  the  bridge,  provided  they  pay  the  rent  now  due,  or 
that  may  be  due  to  the  aforesaid  time,  and  conform  themselves 
in  all  things  agreeably  to  the  rules  and  orders,  settled  by  the 
corporation  for  the  regulation  of  the  ferry.” 

No  vote  was  found,  relating  to  the  ferry,  of  a  later  date  than 
the  one  last  mentioned.  The  college  records  contain  many  oth¬ 
er  votes  respecting  the  regulation  of  the  ferry,  the  amount  of 
fare,  the  leases  and  rents,  similar  in  character  to  those  above 
recited. 

The  secretary  of  the  corporation  testified,  that  in  the  records 
for  one  year  before  the  9th  of  March  1785,  and  for  the  period 
since  elapsed,  there  is  no  vote  of  the  corporation  conveying,  or 
authorizing  any  person  to  convey,  on  behalf  of  the  college,  any 
ferry  rights,  or  the  ferry  between  Boston  and  Charlestown,  to 
any  person  or  corporation  whatever. 

It  appears  from  entries  in  the  books  of  account  of  the  college, 
that  the  college  received  annually,  for  many  years  after  1639 
and  to  the  month  of  May  17S6,  various  sums  of  money  as  the 
profit  or  income  of  the  ferry.  In  some  years  between  1 639 
and  1786,  no  account  of  the  receipts  of  the  ferry  can  be  found. 
For  several  years  after  the  grant  of  the  ferry,  the  college  man¬ 
aged  it  by  their  agents.  For  about  one  hundred  years  before 
1786  they  leased  it  at  an  annual  rent  payable  quarterly.  The 
rents  fluctuated  very  much  during  that  period. 


43 


Extracts  from  the  records  of  the  colony  of  Massachusetts 
were  exhibited,  respecting  other  ferries.  In  1638,  “  Garret  Spen¬ 
ser  is  granted  the  ferry  at  Lynn  for  two  years,  taking  two  pence,” 
&c.  In  1639,  “the  ferry  between  Mount  Woolaston  and  Wey¬ 
mouth  is  ordered  to  be  removed  to  the  nearest  and  most  con¬ 
venient  place,”  Sic.  In  1641,  “  it  is  ordered,  that  they  that  put 
the  boats  between  Cape  Ann  and  Anisquam,  shall  have  liberty 
to  take  sufficient  toll,  as  the  court  shall  think  meet,  for  one  and 
twenty  years.”  In  1648,  upon  information  given  that  there  is 
no  ferry  kept  over  Neponset  river,  between  Dorchester  and 
Braintree,  John  Glover  is  empowered  “  either  to  grant  it  to  any 
person  or  persons,  for  the  term  of  seven  years,  so  it  be  not  any 
way  chargeable  to  the  country,  or  else  to  take  it  himself  and 
his  heirs,  as  his  own  inheritance  forever ;  provided  that  it  be 
kept  in  such  a  place  and  at  such  a  price,  as  may  be  most  con¬ 
venient  for  the  country,  and  pleasant  to  the  general  court.” 

In  1670,  “  for  the  encouragement  either  of  the  town  of  Cam¬ 
bridge  or  any  particular  persons  that  shall  repair  the  bridge,  or 
erect  a  sufficient  cart-bridge  over  the  river  at  Cambridge,  and 
maintain  the  same  for  the  safety  of  passengers,  they  are  hereby 
empowered  to  take  toll  at  the  rates  following,  &c.  and  this  order 
to  continue  in  force  so  long  a  time  as  the  said  bridge  is  main¬ 
tained  serviceable  and  safe  for  passage.” 

On  February  2,  1785,  Thomas  Russell  and  others  offered  a 
petition  to  the  legislature,  representing,  “  that  the  only  communi¬ 
cation  between  Boston  and  the  easterly  and  northerly  part  of 
this  state,  is  by  ferries,  &c.  and  it  has  long  been  the  wish  of 
many  to  see  a  bridge  erected  across  Charles  river,  in  the  place 
where  the  ferry  between  Boston  and  Charlestown  is  now  kept ;  ” 
that  the  “  petitioners,  taking  into  consideration  the  great  advan¬ 
tage  that  will  arise,  not  only  to  the  towns  of  Boston  and  Charles¬ 
town,  but  to  all  the  country  to  the  westward,  northward  and 
eastward,  by  the  accomplishment  of  so  desirable  an  object,  have 
made  some  inquiries,  &c.  and  have  good  reason  to  suppose 
that  such  a  work  (though  at  great  expense)  may  be  accom¬ 
plished  in  such  way  and  manner,  as  greatly  to  accommodate 
the  public  in  general ;  ”  that  they  “  are  willing,  provided  suita¬ 
ble  encouragement  is  given  them,  to  undertake  said  work  at 


44 


their  own  cost  and  charge  ;  ”  and  they  pray  to  be  incorporated 
“  for  the  purpose  aforesaid,  under  such  liberties  and  regulations, 
as  will  make  to  them  a  suitable  compensation  for  the  great  risk 
and  charge  that  will  be  incurred  in  the  prosecution  of  said  busi¬ 
ness.” 

On  February  3,  1785,  John  Cabot  and  Andrew7  Cabot  pre¬ 
sented  a  petition  to  the  legislature,  representing  that  a  bridge 
over  Charles  river,  from  Lechmere  Point  in  Cambridge  to 
Barton’s -Point  in  Boston,  would  be  essentially  useful  to  the  pub¬ 
lic  ;  that  the  petitioners  are  ready  to  build  one  at  their  own  ex¬ 
pense  ;  that  they  will  be  content  to  receive  such  reasonable  toll 
as  the  legislature  shall  think  fit  to  establish  ;  that  so  soon  as  the 
sum  which  may  be  expended  in  building  the  bridge,  and  the 
interest  thereof,  shall  be  paid  to  the  petitioners  by  the  reception 
of  the  toll,  they  will  renounce  all  title  to  the  bridge  and  the  prof¬ 
its  thereof,  and  the  same. shall  be  vested  in  the  commonwealth; 
and  that  so  long  as  the  petitioners  shall  be  entitled  to  receive 
the  toll,  they  will  engage  to  pay  200 1.  annually  for  the  use  of 
Harvard  College. 

On  February  12,  1785,  a  petition  was  presented  on  behalf  of 
the  inhabitants  of  Charlestown,  stating  their  sufferings  during  the 
war  of  the  revolution,  setting  forth  the  advantages  of  having  a 
bridge  where  the  ferry  is  kept,  and  the  inconveniences  to  the  pub¬ 
lic  and  the  injuries  to  themselves,  which  would  attend  a  bridge 
erected  from  Lechmere  Point  to  Barton’s  Point,  appealing  to 
the  compassion  and  justice  of  the  legislature,  and  praying  that 
the  petition  of  Russell  and  others  may  be  granted  and  that  of 
the  Cabots  denied. 

These  three  petitions  were  referred  to  a  committee  of  both 
houses  of  the  legislature,  who  reported  that  the  petitioners  for 
building  a  bridge  at  the  ferry  should  have  leave  to  bring  in  a 
bill  for  that  purpose,  upon  certain  principles;  one  of  which 
was,  that  there  should  be  established,  as  a  compensation  for 
the  expense  of  building  and  repairing  the  bridge,  and  as  a  rev¬ 
enue  for  the  use  of  Harvard  College,  certain  rates  of  toll, 
which  were  specified,  for  the  the  term  of - years. 

On  March  9,  1785,  an  act  was  passed  (St.  1784  c.  53,) 
“  for  incorporating  certain  persons  for  the  purpose  of  building  a 


45 


bridge  over  Charles  river,  between  Boston  and  Charlestown, 
and  supporting  the  same  during  the  term  of  forty  years.”  Af¬ 
ter  reciting  in  the  preamble,  that  “  the  erecting  of  a  bridge  over 
Charles  river,  in  the  place  where  the  ferry  between  Boston  and 
Charlestown  is  now  kept,  will  be  of  great  public  utility,”  and 
that  Thomas  Russell  and  others  have  petitioned  for  an  act  of 
incorporation  to  empower  them  to  build  the  bridge,  the  act  pro¬ 
vides  (§  1),  that  Russell  and  others  shall  be  a  corporation  under 
the  name  of  The  Proprietors  of  Charles  River  Bridge  :  (§  3),  that 
“  for  the  purpose  of  reimbursing  the  said  proprietors  the  money 
expended,  or  to  be  expended,  in  building  and  supporting  the 
said  bridge,  a  toll  be  and  is  hereby  granted  and  established  for 
the  sole  benefit  of  the  said  proprietors,  according  to  the  rates 
following,  &c.  and  in  all  cases  double  toll  shall  be  paid  on  the 
Lord’s  day,  &c.  and  the  said  toll  shall  commence  at  the  day  of 
the  first  opening  of  the  said  bridge  for  passengers,  and  shall 
continue  for  and  during  the  term  of  forty  years  from  the  said 
day  :  ”  (§  4),  that  the  bridge  shall  be  well  built,  at  least  forty  feet 
wide,  with  a  convenient  draw  ;  shall  be  kept  in  good  repair  for 
the  term  aforesaid,  and  at  the  end  of  the  term  shall  be  left  in  like 
repair  ;  shall  be  constantly  kept  accommodated  with  at  least 
twenty  good  lamps  on  each  side  &c.  ;  and  the  draw  shall  be 
lifted  for  all  ships  or  vessels  without  toll  or  pay,  except  such  as 
usually  pass  under  Cambridge  bridge,  and  those  passing  for  pleas¬ 
ure  :  and  (§  5),  “  that  after  the  said  toll  shall  commence,  the  said 
proprietors  or  corporation  shall  annually  pay  to  Harvard  College 
or  University  the  sum  of  two  hundred  pounds,  during  the  said 
term  of  forty  years,  and  at  the  end  of  the  said  term,  the  said 
bridge  shall  revert  to  and  be  the  property  of  the  commonwealth, 
saving  to  the  said  college  or  university  a  reasonable  and  annual 
compensation  for  the  annual  income  of  the  ferry,  which  they 
might  have  received  had  not  said  bridge  been  erected.” 

In  1792,  the  corporation  of  Charles  river  bridge  remonstrated 
against  the  petitions  of  Francis  Dana  and  others,  pray  ing  for  li¬ 
cense  to  erect  a  bridge  over  Charles  river  from  West  Boston  to 
Cambridge.  They  allege,  that  in  consequence  of  the  charter  grant¬ 
ed  to  them  in  1785,  the  proprietors  t»f  Charles  river  bridge  imme¬ 
diately  exerted  themselves  in  its  erection,  at  an  expense  which 


46 


has  amounted  to  upwards  of  51,000  dollars,  and  have  since  added 
to  that  expense  for  its  support,  18,800  dollars  more;  that  in 
1649  [1640]  this  government'  (in  the  idea  of  this  corporation) 
made  an  absolute  exclusive  grant  of  the  ferry  between  Boston 
and  Charlestown,  to  Harvard  College,  and  upon  this  idea  the 
corporation  purchased  this  grant  of  the  college  at  the  price  of 
200/.  per  annum ;  that  a  full  and  valuable  consideration  was 
made  for  the  grant  aforesaid,  by  the  corporation  contracting 
with  the  legislature,  that  the  bridge,  at  the  expiration  of  forty 
years,  should  revert  to  the  public  in  good  repair;  that  the  pro¬ 
fits  have  never  amounted  to  eleven  per  cent,  upon  the  original 
cost,  and  that  if  a  new  bridge  so  near  the  present  one  should  be 
erected,  more  than  one  half  of  the  present  profits  must  be  lost  : 
And  they  pray  that  the  petitions  may  be  dismissed,  as  militating 
in  their  principles  with  public  faith,  and  operating  to  the  very 
great  injury  of  the  remonstrants. 

On  Saturday,  February  18,  1792,  in  the  senate,  it  was  or¬ 
dered,  that  the  next  Monday  be  assigned  for  hearing  the  propri¬ 
etors  of  Charles  river  bridge,  by  their  counsel,  relative  to  the 
report  of  the  committee  of  both  houses,  granting  the  petition  of 
Dana  and  others,  and  that  those  proprietors  notify  the  petition¬ 
ers,  as  soon  as  may  be,  of  this  assignment. 

At  the  same  session  of  the  legislature,  the  college  offered  a 
memorial,  stating  “  that  in  the  year  1640  the  legislature,  in  or¬ 
der  to  encourage  learning,  granted  to  the  college  the  perpetual 
right  of  conveying  passengers  with  their  effects  across  Charles 
river,  from  and  to  Boston  ;  ”  that  when  the  British  troops  evac¬ 
uated  the  town  of  Boston,  the  college,  at  a  considerable  ex¬ 
pense,  repaired  and  widened  the  ways  and  built  sheds,  &c.  and 
that  they  received  an  annual  income  of  200/.,  which  income,  as 
the  country  increased,  would  undoubtedly^  have  increased  in  the 
same  proportion  ;  that  a  few  years  after,  some  persons  made 
application  to  the  legislature  for  liberty  to  build  a  bridge  across 
the  "river,  which  wras  granted,  on  condition  of  their  paying  to  the 
college  the  sum  of  200/.  annually ;  that  to  this  the  college,  sen¬ 
sible  of  the  advantage  to  the  community  in  general  from  such 
an  undertaking,  made  no  objection,  supposing  that  at  the  expi¬ 
ration  of  the  term  for  which  the  bridge  was  given,  it  would  be- 


47 


come  the  property  of  the  college  ;  that  the  corporation,  hearing 
of  an  application  for  liberty  to  build  another  bridge  over  the 
same  river,  think  it  their  duty  to  present  this  memorial,  in  full 
confidence  that  the  legislature  will  take  such  measures  as  shall 
seem  best,  to  compensate  the  college  for  the  loss  of  the  increas¬ 
ing  income  which  would  have  arisen  from  the  privilege  granted 
them  to  the  river. 

A  committee  of  both  houses  made  a  report,  which  was 
amended  and  accepted,  that  it  would  be  expedient  to  grant  to 
Dana  and  others  leave  to  build  a  bridge  over  the  waters  of 
Charles  river  from  West  Boston  to  Cambridge  on  certain  con¬ 
ditions.  They  further  report,  that  they  have  considered  the 
memorial  of  the  college,  and  that  they  think  it  will  be  expedi¬ 
ent  to  grant  to  that  corporation  the  sum  of  450/.  [as  amended, 
300/.]  annually,  during  the  term  of  twenty  [as  amended,  forty] 
years,  and  for  such  further  time  as  the  legislature  may  hereaf¬ 
ter  direct.  They  further  report,  “  that  after  attending  to  the 
memorial  of  the  proprietors  of  Charles  river  bridge,  and  hearing 
them  fully  on  the  subject,  they  are  of  the  opinion  that  there  is 
no  ground  to  maintain,  that  the  act  incorporating  the  proprietors 
for  the  purpose  of  building  a  bridge  from  Charlestown  to  Bos¬ 
ton,  is  an  exclusive  grant  of  the  right  to  build  over  the  waters 
of  that  river ;  but  considering  the  erection  of  Charles  river 
bridge  was  a  work  of  magnitude  and  hazard,  and  that  great 
benefits  have  arisen  to  the  public  from  the  success  of  that  en¬ 
terprise,  and  considering  also  that  the  erection  of  the  proposed 
bridge  may  diminish  the  emoluments  of  the  proprietors  of 
Charles  river  bridge,  which  may  operate  as  a  discouragement 
to  great  and  beneficial  undertakings  in  future,  the  committee 
think  it  reasonable  and  proper  that  a  further  time  of  twelve  [as 
amended,  thirty]  years  be  granted  to  said  proprietors  to  receive 
and  collect  for  their  benefit  the  toll  now  established  by  law  for 
passing  said  bridge.” 

On  March  9,  1792,  an  act  was  passed,  (St.  1791,  c.  62,) 
incorporating  Dana  and  others,  for  the  purpose  of  building  a 
bridge  from  the  westerly  part  of  Boston  to  Cambridge.  This 
act,  for  the  purpose  of  reimbursing  the  corporation  their  ex¬ 
penses  in  building  and  maintaining  the  bridge,  and  of  indemni- 


48 


fying  them  for  their  risk,  grants  them  a  certain  toll  for  the 
term  of  forty  years,  (§  4).  It  provides  (§  5.),  that  at  the  ex¬ 
piration  of  that  term,  the  bridge  shall  be  surrendered  in  good 
repair  to  the  commonwealth  ;  and  (§  6),  that  after  the  toll  shall 
commence,  the  corporation  shall  pay  annually  to  Harvard  Col¬ 
lege  the  sum  of  300/.  during  the  term  of  forty  years.  In  §  7, 
8,  it  is  said,  “  And  whereas  the  erection  of  Charles  river  bridge 
was  a  work  of  hazard  and  public  utility,  and  another  bridge  in 
the  place  proposed  for  the  West  Boston  bridge,  may  diminish 
the  emoluments  of  Charles  river  bridge,  therefore,  for  the  en¬ 
couragement  of  enterprise,”  be  it  enacted,  &c.  that  the  proprie¬ 
tors  of  Charles  river  bridge  shall  continue  to  be  a  “  corporation 
and  body  politic,  for  and  during  the  term  of  seventy  years,  to 
be  computed  from  the  day  that  said  Charles  river  bridge  was 
completed  and  opened  for  passengers,”  subject  to  the  conditions 
and  regulations  prescribed  in  their  act  of  incorporation,  and  du¬ 
ring  the  aforesaid  term  of  seventy  years  they  “  may  continue 
to  collect  and  receive  all  the  toll  granted  by  the  aforesaid  act  for 
their  use  and  benefit  ;  provided,  however,  they  also  continue  to 
pay  annually  to  said  Harvard  College  the  sum  of  200/.  &,c. ;  and 
at  the  expiration  of  said  term  of  seventy  years,  said  Charles 
river  bridge  shall  revert  to  and  be  the  property  of  the  common¬ 
wealth,  and  shall  be  surrendered  in  good  repair.”  In  §  9,  “  it 
is  further  enacted,  that  in  consideration  of  the  privileges  in  this 
act  granted  to  the  proprietors  of  Charles  river  bridge,  the  said 
proprietors  shall  relinquish  the  additional  toll  on  the  Lord’s  day, 
from  and  after  the  passing  of  this  act.” 

In  1800,  upon  an  application  to  the  legislature  by  the  pro¬ 
prietors  of  West  Boston  bridge  for  an  extension  of  their  inter¬ 
est  in  the  bridge,  the  college  presented  another  memorial,  in 
which  they  set  forth  the  grant  to  them  of  the  ferry  between 
Boston  and  Charlestown,  claiming  it  as  a  grant  in  perpetuity, 
and  praying  that  the  reasonable  claims  and  just  interests  of  the 
college  may  not  be  overlooked.  It  is  stated  in  this  memorial, 
that  in  1712,  when,  upon  the  petition  of  John  Clark,  a  bridge 
over  Charles  river  was  contemplated,  it  was  done  with  “  an  ex¬ 
press  reservation  of  the  interest  and  revenue  of  the  ferry  to  the 
college,”  and  that  the  general  assembly,  of  their  own  mere 


49 


motion  and  sense  of  justice,  directed  the  petitioner  and  a  com¬ 
mittee  of  the  house  of  representatives  to  confer  with  the  presi¬ 
dent  and  fellows  of  the  college  on  that  affair. 

In  1805  the  proprietors  of  Charles  river  bridge  chose  a  com¬ 
mittee  to  defend  the  interest  of  the  corporation  against  the  at¬ 
tempts  of  all  other  persons  to  erect  another  bridge  over  Charles 
river  to  the  town  of  Boston.  This  committee  afterwards  report¬ 
ed,  “  that  according  to  their  observation  and  judgment,  the  pub¬ 
lic  opinion  in  favor  of  another  bridge  from  Charlestown  has 
continually  gathered  strength,  from  the  real  or  pretended  want 
of  a  commodious  avenue  to  the  centre  of  Boston  ;  and  believ¬ 
ing  that  unless  a  law,  authorizing  a  new  bridge,  should  pass  in 
the  course  of  one  or  two  years,  the  zeal  for  such  a  project  will 
abate ;  and  finally,  being  sensible  that  if  a  new  bridge  should 
ultimately  be  built,  every  year’s  delay  will  be  of  important  value, 
they  have  concluded  that  it  would  be  highly  prudent  to  assist 
and  promote  the  establishment  of  a  street  over  the  mill-pond, 
from  Charles  river  bridge  to  Middle  street ;  and  accordingly 
have  engaged,  in  behalf  of  the  proprietors,  to  pay  the  sum  of 
12,000  dollars,  to  accelerate  the  making  and  finishing  said 
street,”  &c.  This  report  was  accepted,  and  10,500  dollars 
appropriated  to  fulfil  the  engagements  of  the  committee. 

In  June  1806  and  January  1807,  the  college  chose  commit¬ 
tees  to  present  memorials  to  the  legislature  relative  to  a  contem¬ 
plated  bridge  or  bridges  over  Charles  river,  and  to  take  measures 
to  secure  the  interests  of  the  college. 

At  the  session  of  the  legislature  in  June  1806,  on  the  peti¬ 
tion  of  Christopher  Gore  and  others,  praying  leave  to  erect  a 
bridge  from  Lechmere’s  Point,  in  Cambridge,  to  Barton’s  Point, 
in  Boston,  the  petitioners  were  ordered  to  notify  all  parties,  by 
publishing  the  petition,  and  the  order,  in  certain  newspapers 
printed  in  Boston,  sixty  days  at  least  before  the  next  session,  to 
appear  and  show  cause  why  the  petition  should  not  be  granted. 

In  a  report  of  a  committee  of  both  houses,  in  February 
1807,  upon  several  petitions  and  remonstrances  respecting  the 
bridge  from  Lechmere’s  Point  to  Barton’s  Point,  the  committee 
say,  that  “  after  examination  and  due  reflection  on  the  various 
grants  of  bridges  across  Charles  river,  and  the  pretended  cou- 
7 


50 


Aiding  rights,  they  can  discern  nothing  in  the  said  grants  or  the 
supposed  rights  of  other  corporations,  or  in  the  principles  of 
justice  and  equity,  that  can  be  construed  into  an  abridgment  of 
the  power  of  the  legislature,  to  authorize  the  erection  of  any 
other  bridge.” 

On  February  27,  1807,  an  act  was  passed,  authorizing  the 
building  of  the  Canal  bridge,  from  the  northwestwardly  end  of 
Leverett  street,  in  Boston,  to  the  east  end  of  Lechmere’s  Point, 
in  Cambridge.  By  this  act  the  proprietors  of  Canal  bridge  are 
to  pay  to  the  proprietors  of  West  Boston  bridge  333  dollars  and 
33  cents,  for  every  year  that  both  corporations  shall  exist ;  and 
the  proprietors  of  West  Boston  bridge  are  to  continue  to  be  a 
corporation  for  the  term  of  seventy  years  from  the  time  when 
Canal  bridge  shall  be  completed,  and  during  that  term  are  to 
receive  toll  and  to  pay  G66  dollars  66  cents  annually  to  the  col¬ 
lege.  The  act  contains  no  provision  in  favour  of  the  propri¬ 
etors  of  Charles  river  bridge. 

By  an  act  of  June  21,  1806,  the  “  Proprietors  of  Prison 
Point  Dam  Corporation  ”  were  authorized  to  build  a  dam  from 
Prison  Point  in  Charlestown  to  Lechmere’s  Point  in  Cambridge, 
and  in  1815  and  1816  certain  persons  claiming  to  act  under 
the  right  granted  to  that  corporation,  built  a  bridge  from  Prison 
Point  to  the  Canal  bridge,  the  junction  being  within  the  town 
of  Cambridge. 

In  January  1828,  John  Skinner  and  others  offered  a  petition 
to  the  legislature,  alleging  that  the  public  convenience  and  ne¬ 
cessity  required  another  avenue  between  Charlestown  and  Bos¬ 
ton,  and  praying  to  be  empowered  to  build  a  bridge  commenc¬ 
ing  on  the  southerly  side  of  Charlestown  square,  and  running  to 
a  point  on  the  Mill  pond  lands,  near  Mill  creek,  in  Boston. 

At  the  same  session  of  the  legislature,  the  proprietors  of 
Charles  river  bridge  offered  a  memorial,  in  which  they  state, 
among  other  things,  that  if  the  present  bridge  does  not  give 
every  reasonable  facility  and  accommodation  to  the  public,  they 
hold  themselves  ready  to  accomplish  any  thing,  even  to  the  ex¬ 
tent  of  building  another  bridge,  in  any  way  pertaining  to  the 
convenience  and  accommodation  of  the  public ;  and  that  if  the 
avenue  to  the  bridge  on  the  Charlestown  side  is  thought  to  be 


51 


inconvenient,  they  are  willing  to  make  it  of  any  given  width 
which  the  legislature  may  authorize.  The  memorial  contained 
a  vote,  “  that  the  proprietors  of  Charles  river  bridge  will,  at 
any  time  hereafter,  make  all  such  additions,  alterations  and  im¬ 
provements  in  and  upon  said  bridge  and  the  avenues  connected 
with  it,  as  the  legislature  shall  at  any  time  authorize  and  direct.” 

The  committee  of  both  houses  of  the  legislature,  to  whom 
the  last  mentioned  petition  and  memorial  were  committed,  made 
a  report  staling  the  grounds  relied  on  in  support  of  the  petition, 
and  those  taken  on  the  other  side.  Of  these  last,  one  was, 
“  that  the  grant  of  another  bridge,  with  or  without  tolls,  in  whole 
or  in  part,  and  without  adequate  indemnity  to  the  proprietors  of 
the  existing  bridge,  would  be  an  infringement  of  their  just  rights 
and  a  violation  of  the  public  faith.”  The  committee  say,  that 
“  they  are  of  opinion,  that  public  convenience  and  necessity  re¬ 
quire,  and  that  public  justice  does  not  militate  against  the  grant 
of  a  charter  for  another  bridge  from  Charlestown  to  Boston,  to 
be  erected  within  the  termini  and  on  the  conditions  prayed  for 
by  the  petitioners.” 

The  statute  of  1827,  c.  127,  (passed  March  12,  1828,)  to 
establish  the  Warren  bridge  corporation,  authorizes  the  corpo¬ 
ration  to  build  a  bridge  across  Charles  river,  from  or  near  the 
wharf  in  Charlestown,  late  the  property  of  John  Harris,  de¬ 
ceased,  to  the  newly  made  lands  in  Boston,  near  the  Mill  creek. 
By  §  4,  “  the  corporation  shall  be  holden  to  make  compensation 
to  any  person,  persons  or  corporation,  whose  real  estate  shall  be 
taken  for  the  use  of  said  bridge,”  and  if  there  should  be  a  dif¬ 
ference  of  opinion  as  to  the  value  of  the  same,  either  party 
may  apply  to  the  Court  of  Common  Pleas  for  a  committee  to 
estimate  the  damage ;  “  provided,  that  in  all  cases  either  party 
may  claim  a  trial  by  jury,  as  in  similar  cases  where  lands  are 
taken  for  public  uses.”  In  §  6,  for  the  purpose  of  reimbursing  the 
proprietors  the  expenses  of  building  and  supporting  the  bridge, 
the  same  toll  is  granted  to  them  as  was  granted  to  the  proprie¬ 
tors  of  Charles  river  bridge,  and  when  they  shall  be  reimburs¬ 
ed  their  expenses,  with  five  per  cent,  interest  thereon,  the  bridge 
is  to  revert  to  and  become  the  property  of  the  commonwealth ; 
but  the  term  for  taking  toll  by  the  proprietors  is  not  to  exceed 


52 


six  years.  By  §  8,  at  the  expiration  of  one  year  from  the 
time  of  opening  the  bridge  for  passengers,  and  annually  there¬ 
after  until  the  bridge  shall  revert  to  the  commonwealth,  the 
proprietors  “  shall  pay  out  of  the  income  accruing  from  tolls, 
one  half  the  sum  now  required  to  be  paid  to  Harvard  Col¬ 
lege  or  University  annually  by  the  proprietors  of  Charles  river 
bridge,  and  the  said  proprietors  of  Charles  river  bridge  shall 
be  exonerated  from  paying  to  said  college  or  university,  so 
much  as  is  hereby  required  to  be  paid  by  the  proprietors  of  the 
Warren  bridge.” 

There  was  a  meeting  of  the  proprietors  of  Charles  river 
bridge,  on  April  1,  1785,  at  which  meeting  the  corporation  was 
organized.  The  bridge  was  finished  and  opened  for  passengers 
on  June  17,  1786.  The  aggregate  of  tolls  received  from  June 
1786  to  January  1827,  was  824, 79S  dollars. 

In  the  depositions  of  witnesses  it  was  stated,  that  for  a  long 
time  prior  to  1785  there  had  been  a  regular  ferry  between  Bos¬ 
ton  and  Charlestown,  which  was  reputed  to  belong  to  Harvard 
College  ;  and  that  there  was  no  other  ferry  nor  any  other  regu¬ 
lar  established  means  of  communication  between  the  two  towns. 
The  landing  places  were  covered  by  the  ends  of  Charles  river 
bridge.  When  the  bridge  was  built,  it  accommodated  the  same 
line  of  travel  as  the  ferry,  so  that  immediately  after  the  bridge 
was  opened  for  travellers,  the  ferry  boats  ceased  to  be  used. 
From  that  time  there  was  no  ferry  or  other  regular  means  of 
communication  across  Charles  river  between  Boston  and 
Charlestown,  except  by  this  bridge,  until  the  West  Boston  bridge 
was  erected  under  the  act  of  1791. 

The  proprietors  of  Charles  river  bridge  took  double  toll  on 
the  Lord’s  day  for  several  years;  but  about  the  time  of  passing 
the  act  of  1791,  or  soon  after  the  West  Boston  bridge  was  built 
(the  witnesses  could  not  specify  the  precise  time),  they  ceased 
to  demand  the  double  toll,  and  it  has  never  since  been  exact¬ 
ed.  One  witness  recollected  that  he  paid  double  toll  once  after 
the  22nd  of  May  1792.  The  records  of  the  proprietors  did 
not  contain  any  vote  or  directions  to  their  agents  to  discontinue 
taking  the  double  toll  ;  and  by  the  rules  of  the  corporation,  it 
is  made  the  duty  of  the  clerk  to  record  the  votes  and  transac- 


53 


tions  of  the  stockholders  and  of  the  directors.  Persons  have  at 
all  times  since  the  bridge  was  built,  both  before  and  after  1792, 
crossed  Charles  river  in  boats,  on  Sundays  and  other  days,  and 
there  was  no  evidence  that  they  were  ever  prohibited  from  cross¬ 
ing  in  any  direction  :  neither  was  there  evidence  that  the  owners 
of  the  boats  had  ever  demanded  toll. 

The  distance  between  the  northerly  ends  of  Charles  river 
bridge  and  Warren  bridge,  on  the  Charlestown  shore,  is  260  feet. 
The  avenues  from  them  lead  to  Charlestown  square,  converging 
from  the  bridges  to  the  square,  where  the  distance  between  them 
is  26  feet  3  inches.  The  distance  from  the  northerly  end  of 
Charles  river  bridge  to  the  square  is  426  feet ;  and  the  distance 
from  the  northerly  end  of  Warren  bridge  to  the  square,  is  390 
feet.  Charlestown  square  is  the  principal  place  of  business  in 
that  town,  and  through  which  much  the  greatest  part  of  the 
travel  between  Boston  and  Charlestown  usually  passes.  The 
distance  between  the  southerly  ends  of  the  bridges,  on  the 
Boston  shore,  is  915  feet  in  a  direct  line  across  the  water. 
Charles  river  bridge  communicates  with  Charlestown  street  and 
other  streets,  leading  into  the  city  of  Boston.  Warren  bridge 
communicates  with  Haverhill  and  Causeway  streets  leading  into 
the  city.  Charlestown  and  Haverhill  streets  are  the  principal 
avenues  leading  respectively  from  the  two  bridges  into  the 
central  part  of  Boston  and  the  part  at  which  the  mercantile  busi¬ 
ness  is  chiefly  transacted.  These  two  streets  converge  from  the 
bridges  and  intersect  each  other  at  a  point  on  the  mill-pond, 
so  called.  The  distance  from  the  southerly  end  of  Warren 
bridge  to  the  point  of  intersection  is  about  1463  feet,  and  from 
the  southerly  end  of  Charles  river  bridge  to  the  same  point  is 
about  1385  feet.  Warren  bridge  is  1390  feet  long,  and  Charles 
river  bridge  is  1323  feet.  So  that  the  whole  distance  from 
Charlestown  square  to  the  intersection  of  Charlestown  and 
Haverhill  streets,  is  3134  feet  by  the  way  of  Charles  river 
bridge,  and  3243  feet  by  the  way  of  Warren  bridge. 

Warren  Bridge  would  accommodate  the  whole  of  the  travel 
which  now  passes  over  Charles  river  bridge,  and  the  whole 
travel  which  will  pass  over  Warren  bridge,  would,  if  that  bridge 
had  not  been  erected,  pass  over  Charles  river  bridge.  Persons 


54 


going  from  Charlestown  square  to  the  westerly  part  of  Boston, 
would  probably  go  over  Warren  bridge,  the  distance  being  less 
than  over  Charles  river  bridge  ;  to  other  parts  of  the  city  the 
distance  is  not  less  by  the  way  of  Warren  bridge.* 

In  Charlestown,  at  the  distance  of  1300  feet  from  Charles¬ 
town  square,  is  a  street,  called  Austin  street,  leading  from  Main 
street  to  Prison  Point.  Austin  street,  Prison  Point  bridge 
and  Canal  bridge,  afford  a  convenient  avenue  from  the  upper 
part  of  Charlestown  to  the  westerly  part  of  Boston,  and  many 
persons  pass  that  way ;  but  in  comparison  with  those  who  pass 
over  Charles  river  bridge,  their  number  is  small. 

The  end  of  Warren  bridge  on  the  Boston  shore  is  on  what 
constituted,  in  1786,  the  old  Mill  Pond,  and  at  that  time  the 
land  to  a  considerable  distance  east  and  west  was  covered  with 
water.  The  southerly  end  of  Charles  river  bridge  was  placed 
on  the  most  westerly  part  of  Boston  at  which  a  bridge  could 
then  be  conveniently  placed  on  solid  ground,  leading  from 
Charlestown  square  to  the  central  part  of  Boston.  The  wester¬ 
ly  part  of  Boston,  in  1786,  contained  scarcely  any  inhabitants. 
The  population  and  business  of  that  part  of  Boston  which 
lies  west  and  south  of  a  continuation  of  the  line  of  Charles  river 
bridge,  has  increased  since  1785  much  more  than  the  popula¬ 
tion  and  business  of  the  part  which  lies  east  and  north  of  the 
same  line.  Much  the  greater  part  of  the  inhabitants  of  Boston 

*  The  map,  though  perhaps  not  exact  in  regard  to  distances,  shows 
with  sufficient  accuracy  the  relative  situation  of  the  several  bridges 
and  ferries  in  the  neighbourhood  of  Boston,  which  are  referred  to  in  the 
case.  They  are  denoted  by  numbers  as  follows  : — 

1.  Charles  river  bridge. 

2.  Warren  bridge. 

3.  West  Boston  bridge. 

4.  Canal  (often  called  Craigie’s)  bridge. 

5.  Prison  Point  bridge. 

6.  Malden  bridge,  at  the  place  of  Penny  ferry. 

7.  Chelsea  bridge. 

8.  Winnesimet  ferry. 

9.  South  Boston  bridge. 

10.  South  Boston  free  bridge. 

11.  Cambridge  bridge. 


55 


reside  to  the  west  and  south  of  a  line  formed  by  a  continuation 
of  Haverhill  street.  The  number  of  inhabitants  in  Boston  in 
17S5  was  conjectured  to  be  about  18,000;  in  1825  it  amount¬ 
ed  to  58,281.  The  inhabitants  of  Charlestown  in  1785,  were 
supposed  not  to  exceed  1000;  in  1820  the  number  amounted 
to  6,591.  The  population  of  the  neighbouring  towns  has  like¬ 
wise  increased  very  much  since  1785. 

The  act  of  1784,  incorporating  the  proprietors  of  Charles 
river  bridge,  was  at  an  early  period  recorded  in  their  book  of 
records,  but  no  vote  accepting  that  act,  previous  to  one  passed 
in  1826,  is  found  on  their  records.  At  a  meeting  of  the  pro¬ 
prietors  July  13,  1802,  it  was  voted,  that  the  clerk  be  directed 
to  record  the  parts  of  the  act  of  1791  which  relate  to  the 
Charles  river  bridge.  At  a  meeting  February  15,  1826,  the 
proprietors  recite,  that  an  act  was  passed  on  the  9th  of  March 
1792,  for  incorporating  the  proprietors  of  West  Boston  bridge  ; 
that  they  had  remonstrated  against  the  erection  of  that  bridge 
as  an  infringement  of  their  rights,  and  had  claimed  an  indemni¬ 
ty,  and  the  provision  in  that  act  extending  their  interest  in  their 
bridge  for  the  term  of  seventy  years  &ic.  was  taken,  deemed 
and  accepted  by  them  as  an  indemnity  for  the  loss  and  diminu¬ 
tion  of  emoluments  which  they  would  sustain  by  reason  of  the 
erection  of  the  new  bridge  ;  that  the  act  provided  that  they 
should  relinquish  the  additional  toll  on  the  Lord’s  day,  and  that 
they  did,  from  and  after  the  passing  of  the  act,  relinquish  it ; 
and  that  by  such  relinquishment,  by  ordering  such  clauses  in 
the  act  as  related  to  them  to  be  recorded  among  their  records, 
and  by  divers  other  proceedings,  they  manifested  their  accept¬ 
ance  of  the  act,  but  that  no  express  vote  appears  on  their 
records  accepting  the  same  ;  they  then  say,  “  Now  therefore, 
as  well  for  the  purpose  of  ratifying  and  confirming  all  the  acts, 
doings  and  proceedings  of  this  corporation,  its  officers  and 
agents,  manifesting  an  acceptance  of  the  provisions  of  said  act, 
as  for  placing  on  their  records  an  express  vote  to  that  effect, 
voted,  that  an  act  passed  on  the  9th  day  of  March  1792,  enti¬ 
tled,  &c.  with  all  the  terms,  conditions  and  limitations  therein 
contained,  so  far  as  the  same  in  any  manner  apply  to  this  cor¬ 
poration,  be  and  the  same  are  hereby  accepted.” 


56 


After  West  Boston  bridge  was  built,  a  great  proportion  of  the 
travel  to  Boston  which  passed  through  Cambridge,  and  which 
before  that  time  passed  over  Charles  river  bridge,  was  divert¬ 
ed  and  passed  over  West  Boston  bridge.  When  Canal  bridge 
was  erected,  which  was  in  IS  16,  it  diverted  travel  from  both  of 
the  other  bridges. 

The  proprietors  of  Warren  bridge  were  organized  April  14, 
1828,  under  their  act  of  incorporation.  A  by-law  was  passed 
on  that  day,  authorizing  the  directors  to  build  the  bridge.  On 
December  25,  1S28,  the  bridge,  being  completed,  was  opened 
for  passengers. 

The  tolls  received  at  Charles  river  bridge  from  tbe  5th  to 
the  20lh  of  January  1829,  being  sixteen  days,  amounted  to 
466  dollars.  The  amount  of  tolls  received  in  the  same  period 
at  Warren  bridge  was  707  dollars.  From  January  5,  1829  to 
April  2,  the  amount  of  tolls  at  Charles  river  bridge  was  2423 
dollars,  and  at  Warren  bridge,  3755  dollars.  The  amount 
received  at  Charles  river  bridge  from  December  25,  182S, 
to  June  30,  1S29,  was  6525  dollars;  the  amounts  received 
during  the  corresponding  periods  of  1825  and  1826,  of  1S26 
and  1827,  and  of  1827  and  1828,  were  respectively,  15,631 
dollars,  15,356  dollars,  and  14,911  dollars. 

At  a  meeting  of  the  directors  of  Charles  river  bridge  corpo¬ 
ration,  September  22,  1786,  it  was  voted,  “  that  the  treasurer 
have  an  order  to  pay  the  corporation  of  Harvard  College.” 
On  October  20,  1786,  they  voted  that  the  treasurer  pay  the 
college  “  to  the  first  of  October  instant,  and  after  that  to  pay 
them  quarterly.”  There  is  no  vote  on  the  records  of  the  pro¬ 
prietors  of  Charles  river  bridge  by  which  they  agree  to  be  bound 
to  pay  the  college.  The  foregoing  votes  are  the  only  ones 
found  relating  to  the  subject.  The  annuity  of  200/.  reserved 
to  the  college  by  the  act  of  1784,  has  been  received  by  their 
treasurer  from  the  treasurer  of  the  bridge,  in  quarterly  pay¬ 
ments,  ever  since  October  1,  1786.  The  payment  made  on 
that  day  was  56/.  13s.  Ad.  and  was  in  full  to  that  date. 

On  July  7,  1 829,  the  treasurer  of  the  college  received  of 
the  treasurer  of  Warren  bridge  166  dollars  67  cents,  for  six 
months’  annuity,  from  December  25,  1828,  to  June  25,  1829  ; 


57 


the  payment  being  made  in  pursuance  of  the  provision  in  the 
act  incorporating  the  proprietors  of  that  bridge. 

Formerly  there  was  a  ferry,  called  Penny  ferry,  over  Mystick 
river,  leading  from  Charlestown  and  Malden.  About  the  year 
1787,  certain  persons  incorporated  for  the  purpose,  built  Malden 
bridge  at  the  same  place,  whereby  the  ferry  was  destroyed. 
There  was  no  evidence  that  any  compensation  was  made  to  the 
owner  of  the  ferry. 

About  the  year  1S03,  Chelsea  bridge  was  built  over  Mystick 
river  between  Chelsea  and  Charlestown.  This  bridge  is  about 
a  mile  and  a  quarter  from  Malden  bridge,  and  the  end  on  the 
Chelsea  shore  is  not  more  than  fifty  rods  from  the  ferry-ways 
on  the  same  shore,  of  Winnesimmet  ferry.  This  ferry  be¬ 
tween  Chelsea  and  Boston  is  about  a  mile  and  three  quarters 
in  length,  across  an  arm  of  the  sea.  Chelsea  bridge  diverted 
a  great  deal  of  travel  from  Malden  bridge,  but  in  the  act  of 
March  6,  1802,  authorizing  the  erecting  of  it,  there  is  a  recital, 
that  it  is  agreed  that  the  Malden  bridge  corporation  shall  have 
the  property  of  half  of  the  Chelsea  bridge  and  pay  half  of  the 
expenses  of  the  same  bridge.  The  Winnesimmet  ferry  uTas 
much  injured,  first  by  the  erection  of  Charles  river  and  Mal¬ 
den  bridges,  and  afterwards  by  the  erection  of  Chelsea  bridge ; 
but  the  owner  of  the  ferry  never  received  any  compensation 
for  these  injuries,  though  he  presented  to  the  legislature  a  re¬ 
monstrance  against  the  erection  of  Chelsea  bridge. 

The  free  bridge  from  Boston  to  South  Boston  diverted  much 
travel  from  the  old  bridge  between  these  two  places  ;  and  the 
mill-dam  between  Boston  and  Roxbury  caused  a  diversion  of 
travel  from  West  Boston  bridge  ;  but  in  neither  case  did  the 
legislature  provide  for  an  indemnity  to  the  suffering  party. 

It  did  not  appear,  that  in  either  of  the  cases  before  mention¬ 
ed,  the  party  sustaining  damage  had  resorted  to  any  legal 
process  to  obtain  redress. 

Shaw  for  the  plaintiffs.  The  facts  stated  in  the  bill  are  in 
general  admitted  by  the  defendants.  Of  the  allegations  denied 
in  the  answer,  one  is,  that  there  was  an  ancient  ferry  from  Bos¬ 
ton  to  Charlestown  and  no  other  convenient  mode  of  transpor¬ 
tation  between  the  two  towns.  The  proof  of  this  allegation 
8 


58 


rests  in  legislative  acts,  tradition,  history  and  ancient  records. 
The  evidence  establishes  the  fact,  that  the  ferry  had  its  com¬ 
mencement  as  early  as  the  year  1G31. 

The  defendants  deny  that  the  proprietors  of  Charles  river 
bridge  ever  accepted  the  act  of  1784.  It  appears,  that  they 
organized  themselves  as  a  corporation  immediately  after  the  act 
was  passed,  and  built  the  bridge.  These  facts  are  sufficient 
proof  of  an  acceptance. 

It  is  further  denied,  that  the  ferry  was  granted  to  Harvard 
College.  We  rely  on  the  act  of  the  general  court  of  1640, 
which  declared,  that  “  the  ferry  between  Boston  and  Charles- 
town  is  granted  to  the  college,”  and  the  subsequent  acts  which 
are  in  the  case,  recognising  and  confirming  the  grant ;  and  on 
the  proceedings  of  the  college  in  relation  to  the  ferry.  Even 
before  the  year  1640  the  profits  were  received  by  the  college, 
and  they  were  the  reputed  owners  from  that  period  until  the 
year  1786. 

If  the  college  owmed  the  ferry,  the  defendants  deny  that  the 
legislature  could  grant  it  to  the  plaintiffs.  But  the  college  ac¬ 
quiesced  in  the  transfer,  upon  receiving  an  annuity  in  re¬ 
compense.  The  defendants  say  that  the  college  did  not  assent 
to  the  grant  of  the  plaintiffs’  charter,  and  had  no  knowledge  of 
it ;  but  the  receipt  of  the  annuity  implies  assent,  as  well  to  the 
extension  of  the  charter  as  to  the  original  grant ;  and  in  the  me¬ 
morial  of  the  college  in  1792,  their  assent  to  the  charter  is  ex¬ 
pressly  recognised. 

The  defendants  deny  that  the  act  of  1791  was  accepted  by 
the  plaintiffs.  Their  proceeding  in  conformity  to  its  provisions 
was  an  acceptance ;  and  further,  that  act  being  in  their  favor, 
an  acceptance  is  to  be  presumed.  But,  ex  majori  cauteld,  be¬ 
fore  the  expiration  of  the  first  grant  they  passed  a  vote  express¬ 
ly  accepting  the  extension  of  their  charter. 

It  is  denied  that  there  was  any  vote  to  relinquish  the  double 
toll  on  Sunday.  Such  a  vote  was  not  necessary.  Simply 
omitting  to  take  the  double  toll  was  sufficient ;  and  it  appears 
that  the  plaintiffs  have  never  exacted  it  since  1792. 

The  defendants  deny  that  the  plaintiffs  have  paid  to  the  col¬ 
lege  the  annuity  provided  for  in  the  acts.  The  proof  of  the 
payment  is  complete. 


59 


They  deny  that  they  had  an  intent  to  divert  the  toll  from  our 
bridge.  Our  allegation  was  made  without  much  consideration, 
but  it  is  sustained  by  the  evidence.  For  in  the  defendants’  pe¬ 
tition  to  the  legislature,  they  set  forth  the  necessity  of  relief 
from  the  burden  of  heavy  tolls,  which  the  public  now  pay  at 
Charles  river  bridge,  (though  it  is  difficult  to  perceive  how 
another  bridge  with  the  same  tolls  will  relieve  the  public,)  and 
that  the  proprietors  of  Charles  river  bridge  have  already  re¬ 
ceived  a  much  greater  compensation  than  was  contemplated  by 
the  legislature. 

They  deny  the  allegation,  that  the  corporation  defendant  have 
no  real  or  personal  estate  to  respond  damages  which  the  plain¬ 
tiffs  may  recover  for  any  injury  they  may  sustain.  Whether 
they  have  such  property  or  not,  depends  on  the  question,  wheth¬ 
er  they  have  a  right  to  take  toll. 

They  deny  that  all  the  travel  referred  to  in  the  bill  has  al¬ 
ways  heretofore,  and  must,  as  the  highways  now  are,  pass  over 
Charles  river  bridge,  if  the  Warren  bridge  should  not  be  con¬ 
structed.  Our  allegation  is  to  be  taken  in  connexion  with  the 
rest  of  the  bill.  It  means  that  the  direct  travel  between  Bos¬ 
ton  and  Charlestown  would  pass  over  our  bridge ;  and  this  is 
proved  by  the  evidence  in  the  case.  It  is  true  there  is  a  wray 
over  Canal  bridge  and  Prison  Point  dam  bridge,  but  that  is 
through  Cambridge.  We  do  not  allege  that  there  is  no  cir¬ 
cuitous  travel  between  Boston  and  Charlestown. 

They  deny  that  the  college  discontinued  the  ferry.  In 
a  technical  sense  it  may  be  true  ;  but  in  a  popular  sense  it  is 
otherwise,  for  it  is  clearly  proved  that  the  boats  ceased  to  ply, 
after  the  bridge  was  finished. 

They  allege  that  our  bridge  is  a  monopoly.  A  monopoly 
gives  an  advantage  without  a  consideration.  But  here  there 
was  a  consideration.  They  say  that  a  grant  of  exclusive  privi¬ 
leges,  except  for  services  already  rendered,  is  contrary  to  the 
bill  of  rights.  Can  any  good  reason  be  assigned  why  such  a 
grant  should  not  be  made  in  consideration  of  future  services  ? 
Patents  under  the  laws  of  the  United  States  are  always  granted 
with  a  view  to  subsequent  benefit  to  the  public.  It  is  said  that 
the  erecting  and  maintaining  of  our  bridge  were  not  contem- 


60 


plated  by  the  legislature  as  highly  important  and  beneficial  ser¬ 
vices  to  be  rendered  to  the  public  ;  in  answer,  we  would  only 
refer  to  our  act  of  incorporation. 

The  defendants  do  not  distinctly  deny  that  the  Warren 
bridge  will  accommodate  the  same  line  of  travel  as  our  bridge  ; 
'and  it  appears  in  fact,  that  of  the  tolls  taken  at  both  bridges, 
about  two  thirds  are  received  at  the  Warren  bridge. 

The  great  question  in  the  case  is,  whether  the  plaintiffs  have 
an  exclusive  right  to  maintain  a  bridge  and  collect  the  tolls  ;  ex¬ 
clusive  to  the  extent  set  forth  in  their  bill,  so  that  the  erection 
of  the  Warren  bridge  is,  in  respect  to  the  plaintiffs,  a  nuisance. 

By  the  operation  of  their  act  of  incorporation,  by  their  ac¬ 
ceptance  of  it,  and  by  the  assent  of  the  college,  they  became  the 
successors  and  assignees  of  the  college  in  regard  to  this  ancient 
ferry.  The  word  assignment  is  to  be  taken  in  relation  to  the  sub¬ 
ject-matter.  Here  three  parties  must  concur.  The  government 
must  yield  the  franchise  of  building  a  bridge  over  navigable 
waters,  in  lieu  of  the  ferry  ;  the  college  must  give  up  the  ferry  ; 
and  the  plaintiffs  must  accept  both.  The  plaintiffs  are  as¬ 
signees  in  equity  of  the  ferry  right.  The  owner  of  a  ferry  can¬ 
not  let  it  go  down  and  build  a  bridge  in  its  stead,  without  a 
grant.  It  would  be  a  usurpation.  Pain  v.  Patrick,  3  Mod. 
294.  The  college  would  have  been  indictable,  had  they  not 
been  excused  by  the  legislature,  for  letting  the  ferry  go  down, 
for  a  ferry  is  publici  juris,  and  all  the  subjects  have  an  interest 
in  it.  Pain  v.  Patrick,  uhi  sup.  What  is  the  nature  of  a 
ferry  ?  It  is  a  franchise  ;  a  right  and  duty  to  keep  boats  for 
the  transportation  of  passengers.  It  is  an  incorporeal  heredita¬ 
ment.  In  a  ferry  are  embraced  several  rights  : — I.  A  right  to 
use  the  land  on  each  side  of  the  water  as  a  landing-place. 
Ipswich  v.  Browne,  Sav.  11,  14  ;  Rex  v.  Nicholson,  12  East, 
330  ;  Peter  v.  Kendal,  6  Barn.  &  Cresw.  703.  2.  The  right 

of  franchise  ;  which  may  be  in  the  government,  a  subject  or  a 
corporation.  3.  The  jus  publicum,  or  the  right  of  all  the  sub¬ 
jects  to  use  the  ferry.  4.  The  jus  regium,  or  the  right  of  the 
government  to  make  salutary  regulations  concerning  the  ferry. 
5.  The  eminent  domain  or  the  right  of  appropriating  the  pro¬ 
perty  or  franchise  to  the  public  use,  when  necessary  to  the  pub- 


61 


lie  welfare.  2  Dane,  683,  tit.  Ferry,  cites  most  of  the  author¬ 
ities. 

The  evidence  that  it  was  intended  that  the  proprietors  of 
Charles  river  bridge  should  be  the  owners  of  the  ferry,  is  their 
act  of  incorporation.  The  compensation  given  by  them  for  the 
ferry  shows  that  the  bridge  was  to  be  a  substitute.  It  was  a 
matter  of  purchase.  The  right  is  saved  to  the  college,  of  hav¬ 
ing,  at  the  expiration  of  forty  years,  afterward  extended  to 
seventy,  the  same  revenue  which  it  would  then  have  had  from 
the  ferry  in  case  the  bridge  had  not  been  built.  The  bridge 
too  is  built  at  the  place  of  the  old  ferry-ways. 

The  plaintiffs  having  then  become  the  owners  of  the  ferry,  it 
is  to  be  considered  how  far  the  franchise  was  exclusive.  We 
say  that  the  government  were  precluded  from  establishing 
another  ferry  between  the  two  peninsulas  of  Boston  and 
Charlestown  ;  and  though  it  is  sufficient  for  us  to  show  that 
there  was  no  right  to  set  up  another  ferry  within  a  few  feet  of 
the  old  landing  places,  yet  the  evidence  is  conclusive  of  our 
right  to  the  extent  just  stated.  All  the  other  bridges  over  Charles 
river  connected  with  Boston  are  between  Boston  and  some 
other  town  than  Charlestown. 

Without  defining  precisely  what  are  the  limits  to  which  the 
exclusive  right  of  a  ferry  extends,  it  is  clear  that  it  must  have  a 
reasonable  extent,  and  at-  all  events,  a  new  ferry  must  not  ac¬ 
commodate  the  same  line  of  travel.  “  If  a  ferry  is  erected  on  a 
river,  so  near  another  ancient  ferry  as  to  draw  away  its  custom, 
it  is  a  nuisance  to  the  owner  of  the  old  one.”  3  Bl.  Com.  219  ; 
Tripp  v.  Frank,  4  T.  R.  666  ;  Ogden  v.  Gibbons,  4  Johns. 
Ch.  R.  159,  160.  If  the  new  one  is  erected  very  near  to  the 
old  one,  it  is  by  intendment  of  law  a  nuisance  ;  if  at  a  consider¬ 
able  distance,  the  question  of  nuisance  is  to  be  tried  by  a  jury. 
The  Warren  bridge  is  between  the  same  termini  as  the  ferry, 
and  is  incontestably  so  near  as  to  draw  away  the  custom.  Yard 
v.  Ford,  2  Saund.  172. 

Nor  will  the  king’s  grant  prevent  the  new  ferry  from  being  a 
nuisance  to  the  old  one,  though  an  ad  quod  damnum  may  have 
been  executed.  An  ad  quod  damnum  is  issued  ex  majori  cau- 
tela.  But  the  grant  of  a  new  ferry,  fair  or  market,  is  always 


62 


made  on  condition  that  it  do  not  affect  any  existing  ferry,  fair 
or  market.  But  even  if  this  clause  were  omitted,  the  law  would 
imply  it  and  give  a  remedy  in  an  action  on  the  case  for  a  nui¬ 
sance.  Yard  v.  Ford ,  2  Saund.  172;  2  Inst.  40G ;  Rex  v. 
Sir  Oliver  Butler ,  3  Lev.  222. 

The  right  of  the  ferry  then  in  the  college  being  exclusive  at 
least  so  far  as  to  embrace  the  place  where  the  defendants  have 
built  their  bridge,  the  plaintiffs,  having  for  a  valuable  considera¬ 
tion  succeeded  to  the  owners  of  the  ferry,  must  be  deemed  to 
have  the  same  exclusive  right.  After  the  passing  of  the  act  of 
1784  and  the  acceptance  of  the  annuity,  the  college  would  have 
been  liable  to  our  action  for  a  disturbance,  if  they  had  continued 
to  keep  up  a  ferry,  or  to  a  quo  warranto  at  the  suit  of  the  com¬ 
monwealth. 

But  the  plaintiffs  are  entitled  to  the  right  which  they  claim, 
by  their  act  of  incorporation  and  the  additional  act  of  1791. 
These  acts  passed  by  the  legislature,  and  accepted,  acted  upon 
and  complied  with  by  the  plaintiffs,  constitute  a  contract ,  by'  which 
the  plaintiffs  acquired  an  incorporeal  hereditament ;  being  a  valua¬ 
ble  property,  consisting  in  the  franchise  of  being  a  corporation  and 
taking  the  tolls  mentioned  in  the  acts,  for  the  term  of  seventy 
years.  By  the  constitution  of  the  United  States,  the  legislature 
had  no  right,  directly  or  indirectly',  to  impair  this  contract  in  the 
slightest  degree.  Fletcher  v.  Peck,  6  Cranch,  87  ;  New  Jersey  v. 
Wilson,  7  Cranch,  1  G4  ;  Tcrrett  v.  Taylor,  9  Cranch,  49  ;  Dart¬ 
mouth  College  v.  Woodward,  4  Wheat.  516;  Green  v.  Biddle, 
8  Wheat.  84  ;  JVyman  v.  Southard,  ibid.  50. 

What  then  is  the  true  construction  of  this  contract,  and  the 
extent  of  the  grant  ? 

It  was  intended  to  be  a  beneficial  grant.  The  bridge  is  recit¬ 
ed  to  be  a  work  of  public  utility  and  of  great  hazard.  The 
proprietors  are  to  erect  and  maintain  it  at  their  own  charge,  and  to 
pay  an  annuity  to  the  college,  and  at  the  termination  of  their 
charter,  are  to  surrender  the  bridge  to  the  government  in  good 
repair.  The  toll  is  granted  for  their  “  sole  benefit  ”  for  the 
purpose  of  reimbursing  them  their  expenses. 

But  in  order  to  be  beneficial,  the  grant  must  be  exclusive. 
The  contemplated  reimbursement  depended  upon  receiving  the 


63 


tolls  at  the  rates  specified,  upon  all  the  carriages  &c.  therein 
mentioned,  including  the  whole  line  of  travel  between  the  termini. 
The  rates  of  toll  being  fixed,  if  another  bridge  is  placed  so  as 
to  take  a  portion  of  the  carriages  &e.  in  the  same  line  of  travel, 
at  the  same  or  a  reduced  rate  of  loll  or  without  toll,  the  toll  es¬ 
tablished  for  the  plaintiffs’  sole  benefit  is  in  part  taken  away. 
The  income  thus  reduced  may  not  be  sufficient  to  keep  the 
bridge  in  repair,  but  the  plaintiffs  are  notwithstanding  obliged  to 
keep  it  in  repair  and  to  pay  the  college  annuity. 

A  grant  is  always  to  be  so  construed  as  to  effect  the  intent 
of  the  parties,  and  a  necessary  implication  will  have  the  same 
force  as  express  terms.  Although  not  expressed,  the  grantee 
is  to  have  all  that  is  essential  to  the  taking  and  enjoying  of  the 
thing  granted.  Co.  Lit.  56  a;  Finch’s  Law,  100;  Plowd. 
317  ;  Darcy  v.  Askwith,  Hob.  234  ;  Liford’s  case,  11  Co.  52  ; 
Perk.  §  1 11,  116  ;  Bro.  Abr.  Incidents,  pi.  8,  and  Nusans,  pi. 
14,  cites  9  E.  4,  35  ;  Saunders ’s  case,  5  Co.  12;  1  Wms. 
Saund.  323,  note  6  ;  Allen’s  case,  Owen,  113;  Gayetty  v. 
Bethune,  14  Mass.  R.  56.  What  was  the  substance  of  this 
grant  ?  Not  the  strip  of  land  forty  feet  wide  occupied  by  our 
bridge  ;  not  a  right  of  way  ;  not  a  mere  license  to  build  a 
bridge  over  navigable  waters  ; — the  substance  of  the  grant  was, 
the  right  to  take  certain  tolls  for  certain  carriages  &tc..  on  a  given 
line  of  travel.  In  order  to  be  beneficial  it  must  be  exclusive. 

If  we  attempt  to  ascertain  the  intent  of  the  parlies  from  the 
nature  and  subject-matter  of  the  grant  itself,  we  come  to  the 
same  result.  The  construction  uniformly  put  upon  similar 
grants,  whether  for  ferries,  turnpike  roads,  bridges,  or  the  like, 
is,  that  the  grant  of  the  tolls  upon  passage  necessarily  excludes 
such  competition  as  would  materially  diminish  the  tolls.  New¬ 
burgh  Tump.  Co.  v.  JVliller,  5  Johns.  Ch.  R.  112;  Ogden  v. 
Gibbons,  4  Johns.  Ch.  R.  161  ;  Livingston  v.  Dan  Ingen,  9 
Johns.  R.  568,  573. 

The  intent  of  the  parties  will  be  rendered  still  more  clear,  if 
the  charter  is  considered  in  reference  to  the  local  circumstances 
of  the  bridge  and  its  termini,  and  the  object  had  in  view  at  the 
time  of  the  grant.  The  object  expressed  in  the  title  of  the  act, 
was  to  build  a  bridge  between  Boston  and  Charlestown.  At 


64 


that  time  the  two  peninsulas  approached  each  other  in  a  manner 
very  different  from  what  they  do  at  this  day,  and  the  streets  on 
both  sides  led  towards  the  termini  of  the  bridge.  All  the  travel 
between  Charlestown  square  and  Boston  must  have  been  con¬ 
templated  in  the  act. 

One  mode  of  determining  whether  the  plaintiffs  have  any 
exclusive  right  to  the  franchise  of  taking  toll  is,  by  inquiring 
whether  they  could  have  maintained  any  action  for  injurious 
competition.  Toll  bridges  are  rare  in  England,  and  therefore 
the  authorities  relate  more  frequently  to  ferries.  A  ferry  is  a 
franchise  derived  from  the  king’s  prerogative,  which  cannot  be 
set  up  without  the  king’s  license.  When  so  erected,  a  person 
cannot  erect  another  to  the  nuisance  of  it.  Churchman  v.  Tun- 
stal,  Hardr.  163.  If  he  does,  an  action  on  the  case  lies.  3 
Bl.  Com.  318  et  seq.  And  such  action  lies,  notwithstanding 
the  second  ferry  may  have  been  set  up  under  the  king’s  license 
and  after  an  ad  quod  damnum  executed.  Hale  De  Port.  Mar. 
(Hargr.  Tr.)  59  ;  Rex  v.  Sir  Oliver  Butler,  3  Lev.  221  j 

5.  C.  2  Ventr.  344.  A  scire  facias  for  repealing  a  patent  may 
be  sued  by  a  person  prejudiced  thereby,  as  well  as  by  the  king. 
Brewster  v.  Weld,  6  Mod.  229  ;  Com.  Dig.  Patent,  F,  4,  5, 

6,  7 ;  2  Wins.  Saund.  72,  note  4  ;  4  Inst.  88.  It  is  clear  then, 
that  an  action  will  lie  for  a  disturbance  in  fact  of  a  ferry ;  and 
this  proves  that  a  right  of  ferry  is  an  exclusive  franchise. 

In  this  respect  a  bridge  is  like  a  ferry.  It  cannot  be  set  up 
without  the  king’s  license.  Either  is  a  part  of  a  highway.  In 
erecting  a  bridge  there  is  a  greater  outlay  of  money,  on  the 
sole  chance  of  being  reimbursed  by  the  tolls  ;  so  that  the  case 
is  stronger  than  that  of  a  ferry. 

Without  reference  to  the  act  incorporating  the  proprietors  of 
the  Warren  bridge,  the  plaintiffs  have  made  out,  prima  facie,  a 
case  of  property.  The  defendants  deny  the  exclusive  right 
which  we  claim,  and  they  set  up  their  own  right  under  their  act 
of  incorporation. 

The  defendants  say  we  have  only  a  license  to  erect  a  bridge  ; 
a  license  to  use  a  strip  forty  feet  wide,  of  flats  and  river,  and  to 
get  all  the  tolls  we  can  of  persons  going  over  the  bridge.  A 
license  is  merely  for  the  private  convenience  of  the  grantee,  as 


65 


to  build  a  wharf  or  dam  for  private  use  ;  a  bridge  ex  vi  termini 
implies  public  use.  The  proprietors  of  a  bridge  would  be  in¬ 
dictable  for  suffering  it  to  be  out  of  repair. 

The  defendants  justify  and  claim  a  right  to  erect  and  main¬ 
tain  their  bridge,  without  compensation  to  the  plaintiffs  for  the 
loss  they  may  sustain,  by  force  of  the  act  of  the  legislature. 

We  say  this  act  does  not  purport  to  divest,  restrain  or  limit 
the  rights  of  Charles  river  bridge.  It  is  in  its  terms  simply  a 
grant.  It  is  therefore  to  be  construed  as  an  act  granting  such 
rights  as  the  legislature  had  a  right  to  grant,  and  no  more.  As 
against  the  public,  it  gives  the  grantees  a  right  to  obstruct  navi¬ 
gable  waters  and  to  take  toll ;  but  it  does  not  purport  to  author¬ 
ize  an  invasion  of  private  rights.  And  if  it  did  in  the  most  ex¬ 
press  terms,  it  would  be  merely  void  and  inoperative.  It 
follows,  that  if  the  Warren  bridge  is  an  encroachment  upon 
the  rights  of  the  plaintiffs,  the  defendants  are  amenable  to  them 
in  the  same  manner  and  to  the  same  extent  as  if  there  had  been 
no  legislative  act.  Jackson  v.  Catlin,  2  Johns.  R.  248  ;  Cat- 
lin  v.  Jackson ,  8  Johns.  R.  406. 

The  case  then  is  brought  to  this  question,  whether,  if  no  legis¬ 
lative  act  had  been  passed,  the  plaintiffs  could  maintain  an  ac¬ 
tion  against  the  defendants.  The  grant  to  the  plaintiffs  was,  to 
some  extent,  exclusive,  or  it  was  simply  a  license  to  use  a  strip 
of  land  and  water  forty  feet  wide  and  take  toll  of  such  persons 
as  should  pass  over  it.  If  it  was  in  any  degree  exclusive,  either 
by  express  terms  or  by  necessary  implication,  the  legislature 
are  in  that  degree  restrained  from  making  any  other  grant.  If 
the  plaintiffs  had  only  a  license,  as  above  mentioned,  then  the 
defendants,  without  any  act  of  the  legislature,  might  have  erect¬ 
ed  another  bridge  by  the  side  of  Charles  river  bridge  immedi¬ 
ately  after  this  bridge  was  built  and  before  the  plaintiffs  had  re¬ 
ceived  any  benefit  from  it,  and  yet  would  have  been  liable 
to  no  action  by  the  plaintiffs  ;  and  it  is  no  answer  to  say  they 
would  have  been  liable  to  an  indictment  for  a  public  nuisance. 

The  only  way  of  avoiding  the  alternative  above  stated,  is  to 
maintain,  that  the  grant  to  the  plaintiffs  was  to  a  certain  extent 
exclusive,  but  that  such  exclusive  grant  was  subject  to  the  implied 
condition,  that  whenever  the  public  exigency  should  require  anoth- 
9 


66 


er  bridge  within  the  limits  of  such  exclusive  grant,  the  government 
reserved  to  itself  the  right,  without  compensation  or  indemnity,  to 
erect  such  other  bridge,  and  that  of  this  exigency  any  future 
general  court  were  to  he  the  sole  and  exclusive  judges.  It  is 
only  necessary  to  state  this  proposition  to  show  its  inconsistency 
with  all  sound  and  just  notions  of  private  right.  In  a  matter 
of  contract  between  the  government  and  its  subjects,  in  relation 
to  property,  the  grant  of  a  particular  revenue  or  toll,  exactly 
specified,  for  a  definite  term,  without  any  apparent  reserve  or 
condition,  there  is  a  tacit  reservation  on  the  part  of  the  govern¬ 
ment  of  a  right  to  resume,  within  the  term,  the  whole  substance 
of  the  grant  or  to  convey  it  to  others  !  A  doctrine  so  danger¬ 
ous  derives  no  sanction  from  the  common  law.  In  England,  a 
second  grant,  if  it  impairs  a  preceding  one,  let  the  public  exi¬ 
gency  be  what  it  may,  is  deemed  void,  not  only  as  against  the 
first  grantee,  but  as  against  the  crown,  it  being  considered  as 
irnprovidently  made.  How  does  this  case  of  a  franchise  differ 
from  that  of  land,  which  is  derived  from  government  ?  Land  is 
subject  to  be  resumed  for  roads,  &c.  but  it  is  upon  granting  an 
adequate  compensation.  The  substance  of  our  grant  is  a  right 
to  take  tolls.  This  is  the  only  beneficial  part  of  it ;  all  the 
rest  is  burdensome.  If  the  government  have  tacitly  reserved 
such  a  right  as  above  described,  they  may  determine  how  it 
shall  be  exercised,  and  they  may  appoint  a  man  to  take  the  tolls 
for  their  own  use.  And  it  is  manifest  from  the  Warren  bridge 
act,  that  the  government  are  taking  away  the  tolls  for  their  own 
benefit ;  for  in  six  years,  or  sooner,  that  bridge  is  to  revert  to 
the  commonwealth.  There  will  then  remain  twenty  years  be¬ 
fore  the  charter  of  Charles  river  bridge  will  expire,  during 
which  the  government  will  be  receiving  the  revenue  of  the 
Warren  bridge;  nor  must  they  omit  to  receive  it,  for  then 
that  bridge  wiil  be  a  greater  nuisance  to  us  than  it  is  at  present. 
Can  the  legislature  thus  draw  into  its  treasury  the  tolls  before 
granted  to  us  ? 

The  authority  relied  on  by  the  defendants  to  erect  their 
bridge,  is  inoperative  and  void,  in  so  far  as  it  impairs  the  rights 
of  the  plaintiffs  ;  being  repugnant  to  the  constitution  of  the 
United  States,  by  impairing  the  obligation  of  contracts ;  and 


67 


repugnant  to  the  same  constitution  and  to  the  constitution  of 
Massachusetts,  by  appropriating  the  private  property  of  the 
plaintiffs  to  the  public  use,  without  providing  any  compen¬ 
sation. 

It  has  already  been  shown,  that  the  acts  of  1784  and  1791, 
granting  and  extending  the  plaintiffs’  charter,  constitute  a  con¬ 
tract,  and  which  is  exclusive  to  a  certain  extent  ;  that  the  War¬ 
ren  bridge  is  erected  within  that  extent  ;  and  that  it  diminishes 
in  a  great  degree  the  amount  of  the  plaintiffs’  tolls,  and  in  the 
same  degree  diminishes  the  value  of  their  franchise.  It  has 
been  determined,  that  the  clause  in  the  constitution  of  the  Uni¬ 
ted  States  applies  as  well  to  executed  as  to  executory  contracts  ; 
to  grants,  as  well  as  to  covenants  and  other  contracts.  Fletcher 
v.  Peck,  6  Cranch,  87.  And  any  legislative  act  which  impairs 
the  title  or  diminishes  the  value  of  the  right,  property  or  inter¬ 
est  created  or  vested  by  a  grant,  does  impair  the  obligation  of 
a  contract,  and  is  thus  far,  and  for  this  cause,  null  and  void. 

Has  the  Warren  bridge  act  provided  any  compensation  to  the 
plaintiffs,  agreeably  to  the  constitutions  of  this  state  and  of  the 
United  States  ? 

In  the  10th  article  of  our  bill  of  rights,  it  is  declared,  that 
“  whenever  the  public  exigencies  require,  that  property  of  any 
individual  should  be  appropriated  to  public  uses,  he  shall  receive 
a  reasonable  compensation  therefor.”  The  provision  in  the 
constitution  of  the  United  States  is,  “  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation.”  These 
provisions,  made  for  the  security  and  protection  of  the  subject, 
are  to  have  a  benign  and  liberal  construction.  All  kinds  of 
property  are  to  be  protected  ;  and  “  taking  ”  or  “  appropriating  ” 
necessarily  includes  all  means  by  which  the  title  or  beneficial 
interest  in  such  property  may  be  divested  or  diminished.  The 
construction  uniformly  put  upon  these  clauses,  and  which  is 
necessary  in  order  to  render  them  effectual  as  security,  has  been, 
that  the  provision  for  compensation  must  be  made  simultaneous¬ 
ly  with  the  act  giving  the  authority  to  take  the  property,  and  un¬ 
less  this  is  done,  the  authority  is  void.  Gardner  v.  JYewburgh, 

2  Johns.  Ch.  R.  16S  ;  Perry  v.  Wilson,  7  Mass.  R.  395  ; 
Stevens  v.  Middlesex  Canal,  12  Mass.  R.  468 ;  Callender  v. 


68 


Marsh,  1  Pick.  430  ;  Vanhorne's  Lessee  v.  Dorrance,  2  Dal¬ 
las,  304. 

In  this  case  provision  is  not  made  for  compensation.  In  the 
8th  section  of  the  act  of  J827  it  is  provided,  that  until  the 
Warren  bridge  shall  revert  to  the  Commonwealth,  the  proprie¬ 
tors  shall  pay  out  of  the  income  accruing  from  tolls,  one  half 
the' annuity  required  to  be  paid  to  the  college  by  the  proprietors 
of  Charles  river  bridge,  and  these  proprietors  are  to  be  ex¬ 
onerated  from  paying  such  half.  Our  consent  to  this  arrange¬ 
ment  is  not  asked,  and  the  payment  by  the  Warren  bridge  is  to 
be  made  out  of  tolls  to  which  we  have  a  right.  The  4th  sec¬ 
tion  provides  for  an  indemnity  only  where  real  estate  shall  be 
taken.  The  legislature  have  no  right  to  determine  the  nature 
of  the  compensation,  the  amount  of  it,  nor  the  mode  in  which 
it  shall  be  ascertained.  The  damages  are  to  be  determined 
only  by  agreement  or  by  a  trial  by  jury.  Vanhorne’s  Lessee  v. 
Dorrance,  2  Dallas,  304. 

In  Day  v.  Savage,  Hob.  87,  an  act  of  parliament,  made 
against  natural  equity,  is  said  to  be  void.  Perhaps  the  expres¬ 
sion  may  be  too  strong,  as  courts  in  England  are  subordinate  to 
parliament ;  but  here  the  Supreme  Court  is  a  co-ordinate  branch 
of  the  government,  and  any  legislative  act  must  be  declared 
void,  so  far  as  it  conflicts  with  the  constitution.  Marbvry  v. 
Madison,  1  Cranch,  137;  1  Kent’s  Com.  425 ;  Wilkinson  v. 
Leland,  2  Peters’s  Sup.  Ct.  R.  627. 

The  defendants  allege  that  the  legislature  have  always  had 
the  control  of  navigable  waters  and  of  public  highways,  ferries 
and  bridges,  and  have  been  accustomed  to  proceed  as  they  have 
done  in  this  instance,  without  making  compensation.  We  deny 
that  there  has  been  any  such  usage.  But  if  there  was  before 
the  constitution,  it  was  repealed  by  the  constitution  ;  and  if  such 
a  usage  has  grown  up  since,  it  is  repugnant  to  the  constitution 
and  has  no  more  validity  than  a  law  would  have. 

It  is  said  too,  that  the  increase  of  population  required  another 
■  bridge.  If  that  were  true,  it  would  not  impair  the  plaintiffs’ 
rights.  Mosley  v.  JValker,  7  Barnw.  &  Cress.  40  ;  Mosley 
v.  Chadtvick,  ibid.  47,  note.  They  offered  to  furnish  such  fur¬ 
ther  accommodation  for  the  public  as  the  legislature  should  di-. 


69 


rect.  At  any  rate,  the  public  exigency  did  not  require  that 
their  franchise  should  be  taken  away  without  compensation. 

Several  documents  have  been  introduced,  to  show  that  the 
government  have  the  right  of  regulating  ferries.  But  such  a 
right  is  not  inconsistent  with  an  exclusive  property  in  the  owner 
of  the  ferry.  The  government  have  never  claimed  the  right  of 
taking  away  tolls  which  they  have  granted. 

Webster,  on  the  same  side,  cited,  to  show  that  where  there  is 
an  existing  franchise,  no  part  of  it  can  be  regranted  unless  there 
has  been  a  forfeiture,  Rex  v.  Passmore,  3  T.  R.  199  ;  Rex  v. 
Amery,  2  T.  R.  565  ;  Wales  v.  Stetson,  2  Mass.  R.  143  ; 
Rex  v.  Vice  Chancellor  fyc.  of  Cambridge,  3  Burr.  1656  ; 

2  Bl.  Com.  37  : — As  to  the  nature  of  a  ferry,  Termes  de  la 
Ley,  voc.  Ferry  ;  Com.  Dig.  Piscary  B  ;  and  how  far  it  is  a 
monopoly,  17  Yin.  88,  Prerogative  fyc.  J\I.  b;  13  Vin.  208, 
Ferry: — As  to  the  rule  for  construing  the  king’s  grant,  and  as 
to  the  effect  of  subsequent  usage  in  the  construction  of  a  grant, 
17  Vin.  152,  Prerogative  fyc.  O.  c;  Blankley  v.  Winstanley, 

3  T.  R.  286,  288,  291,  note  : — And  to  the  point,  that  where  a 
franchise,  which  existed  in  the  hands  of  a  subject  with  certain 
lights,  revests  in  the  king  and  is  regranted,  it  passes  with  the 
same  rights,  Palm.  78. 

Aylwin  for  the  defendants.  By  the  civil  and  common  law, 
all  navigable  waters,  inlets  and  arms  of  the  sea,  are  recognised 
as  public  property  ;  and  roads,  ferries  and  bridges  are  treated 
as  matters  to  be  regulated  by  the  sovereign  authority.  Inst. 
lib.  2,  tit.  1,  §  2,  3,  4  ;  Dig.  lib.  39,  tit.  2,  l.  24  ;  lib.  43,  tit. 
12,  l.  4  ;  Grot.  lib.  2,  c.  3,  §  9  ;  2  Domat,  Public  Law,  bk.  1, 
tit.  8,  §  1,  no.  7  ;  Vattel,  bk.  1,  §  100,  244,  245  ;  Case  of  the  Isle 
of  Ely,  10  Co.  141  ;  Com.  Dig.  Chimin,  A  1  ;  Hale,  Be  Jure 
JVlaris,  part  1,  c.  1  ;  ibid.  c.  3  ;  2  Inst.  38  ;  1  Hawk.  P.  C.  c. 
76,  §  1  ;  Finch’s  Law,  164,  c.  14;  Hooker  v.  Cummings,  20 
Johns.  R.  100.  So  by  the  Feudal  law.  1  Bl.  Com.  264.  That 
they  belong  to  the  public  domain  and  are  subject  to  the  control 
of  the  state,  the  decisions  of  this  Court  abundantly  testify. 
Commonwealth  v.  Coombs,  2  Mass.  R.  493 ;  Hood  v.  Bighton 
Bridge,  3  Mass.  R.  267;  Arundell  v.  M‘Culloch,  10  Mass. 
R.  70 ;  Commonwealth  v.  Charlestown,  1  Pick.  165.  In 


70 


Commonwealth  v.  Breed,  4  Pick.  404,  the  Court  say,  “  The 
legislature  has  power  to  regulate  and  control  all  public  highways 
and  the  navigable  waters  within  the  limits  of  the  state.  This 
poster  has  been  exercised  from  the  commencement  of  our  gov¬ 
ernment.”  In  the  exhibits  and  in  our  statute  books  will  be  found 
ample  evidence  in  support  of  this  declaration.  Anc.  Charters, 
&c.  110,  280,  448,  G23  ;  St.  1796,  c.  42. 

Upon  general  principles  therefore,  and  according  to  the  ear¬ 
liest  usage,  the  general  court  had  the  power  to  pass  the  act 
under  which  the  defendants  claim  to  erect  their  bridge,  unless 
there  existed  some  particular  restraint  taking  the  case  out  of  the 
operation  of  their  general  jurisdiction.'  The  burden  rests  on  the 
plaintiffs  to  make  out  such  restraint. 

Before  proceeding  further,  it  may  be  well  to  examine  wheth¬ 
er  the  standing  of  the  plaintiffs  in  court  is  made  out  by  the 
consistency  of  the  proof  with  their  allegations. 

It  is  alleged  in  the  bill,  that  the  act  of  1791  was  duly  accept¬ 
ed  and  that  the  conditions  on  which  it  was  to  take  effect  were 
complied  with.  This  the  defendants  deny.  The  doings  relied 
on  for  proof  of  acceptance  are  the  immediate  entry  on  their 
records,  of  the  portions  of  the  act  relating  to  their  corporation ; 
the  discontinuance  of  the  double  toll  ;  and  a  formal  vote  of  ac¬ 
ceptance  passed  before  the  expiration  of  their  charter.  The 
evidence  proves  that  the  entry  referred  to  was  not  made  till  the 
13th  of  July  1802,  being  ten  years,  instead  of  immediately  af¬ 
ter  1792.  This  entry,  being  an  act  in  itself  equivocal,  was  not 
sufficient  to  show  an  acceptance,  and  it  was  not  made  in  due 
season.  The  vote  of  February  15,  1826,  four  months  only 
before  the  expiration  of  the  forty  years,  was  clearly  too  late. 
The  corporation  had  waited  till  the  last  moment,  to  ascertain  what 
might  be  the  possible  disadvantages  of  an  acceptance,  and  find¬ 
ing  no  burden,  but  on  the  contrary,  immense  benefits  to  flow 
from  it,  they  passed  the  formal  vote  now  relied  on. 

In  the  amended  bill  the  plaintiffs  deny  that  they  ever  solicit¬ 
ed  the  acceptance  of  the  report  of  the  joint  committee  of  the 
general  court  extending  to  them  for  twelve  years  the  term  of 
taking  toll,  or  the  enlargement  of  it  by  the  legislature  to  thirty 
years.  This  then  rebuts  the  presumption  of  an  acceptance  of 


71 


the  additional  act,  earlier  than  1826,  from  its  being  for  their 
benefit.  They  assert  that  no  application  on  their  part  was 
made  for  the  new  grant. 

The  extension  might  have  been  to  their  detriment,  as  they 
were  required  to  relinquish  the  additional  toll  on  Sundays  ;  and 
the  burden  of  maintaining  the  bridge  during  the  enlarged  period, 
in  case  of  casualties  which  they  affected  to  dread,  might  have 
more  than  counterbalanced  the  benefit.  The  stockholders 
might  have  paused  on  this  question.  For  this  reason  then  their 
assent  is  not  to  be  presumed.  Union  Locks  and  Canals  v. 
Towne,  1  New  Hamp.  R.  44. 

The  proof  does  not  show  an  immediate  relinquishment  of 
double  toll.  The  testimony  of  the  witnesses  on  the  part  of  the 
plaintiffs  is  merely  of  a  negative  character;  while  one  witness  on 
the  part  of  the  defendants  testifies  positively  to  the  payment  of 
it  on  the  first  Sunday  after  the  22nd  of  May  1792.  To  fulfil 
the  intent  of  the  legislature,  there  should  have  been  an  express 
relinquishment  by  a  vote  ;  otherwise  there  would  be  nothing  to 
bind  the  corporation.  Ellis  v.  Marshall,  2  Mass.  R.  269. 

Where  an  act  is  to  be  done,  and  no  time  is  prescribed  in 
which  it  is  to  be  performed,  it  must  be  done  within  a  reasonable 
time.  Co.  Lit.  208.  That  ten  years  after  March  9,  1792,  was 
not  a  reasonable  time  for  the  acceptance,  can  hardly  admit  of 
a  doubt.  Hayden  v.  Stoughton ,  5  Pick.  528. 

The  act  incorporating  the  proprietors  of  Warren  bridge,  is 
alleged  by  the  plaintiffs  to  be  invalid,  because  in  effect  it  au¬ 
thorized  the  taking  of  private  property  for  the  public  use,  with¬ 
in  the  meaning  of  the  constitution  of  the  United  States,  and  was 
an  appropriation  of  it  for  the  like  object,  within  the  true  intent  of 
the  constitution  of  this  commonwealth,  which  could  not  be  done 
without  at  the  same  time  providing  a  reasonable  compensation. 

The  foundation  on  which  this  objection  rests  is  controverted 
by  the  defendants.  If  any  property  has  been  taken,  it  is  real 
property,  and  by  the  4th  section  a  provision  for  indemnity  is 
made. 

What  is  the  nature  of  the  property  alleged  to  have  been  ta¬ 
ken  ?  Is  it  real  or  personal  ?  A  ferry  is  an  incorporeal  he¬ 
reditament  ;  Co.  Lit.  6  a  ;  and  as  considered  by  the  plaintiffs 


72 


themselves,  a  franchise  having  locality.  It  falls  within  the  defi¬ 
nition  of  the  civil  law,  of  immovable  property,  and  of  the  com¬ 
mon  law,  of  real  property.  By  the  common  law  it  might  have 
been  demanded  in  a  praecipe  quod  reddat;  and  by  force  of 
St.  Westm.  2,  c.  25,  an  assise  of  novel  disseisin  was  given  for  it. 
2  Inst.  409  ;  Humphreys  on  Real  Prop.  8. 

But  the  defendants  deny  that  any  property  of  the  plaintiffs 
has  been  taken  or  appropriated  by  the  act  in  question.  The 
claim  of  the  plaintiffs  is,  in  reality,  to  a  mere  naked  right ;  to 
the  exclusion  of  the  public  from  the  use  of  the  navigable  waters 
of  the  commonwealth  for  the  purpose  of  transportation.  Such 
a  right  cannot  be  property,  within  any  known  or  practical  mean¬ 
ing  of  the  term,  nor,  if  infringed,  is  there  a  taking  or  appropria¬ 
ting  of  property  within  the  intent  of  either  constitution.  The 
community,  in  their  sovereign  capacity,  being  the  owners  of  these 
navigable  waters,  possess  the  right  of  using  them  at  their  pleas¬ 
ure,  unless  they  have  imposed  some  legitimate  restraint  on 
themselves  by  compact.  If  they  have  not  so  restrained  them¬ 
selves,  and  they  actually  made  such  use  of  them  as  to  affect  the 
interests  of  the  plaintiffs,  it  is  damnum  absque  injuria,  and  falls 
clearly  within  the  principle  touching  public  rights,  recognised  in 
the  case  of  Callender  v.  Marsh,  1  Pick.  418.  See  also  Thurs¬ 
ton  v.  Hancock,  12  Mass.  R.  220. 

Have  the  legislature  so  restrained  themselves  that  they  could 
not  make  the  grant  to  the  defendants,  without  the  violation  of  a 
prior  contract  ? 

In  opposition  to  the  plaintiffs’  claim  to  an  exclusive  right,  we 
make  several  objections. 

1.  The  ferry  was  not  an  ancient  or  prescriptive  ferry,  in 
the  legal  import  of  those  terms,  as  would  seem  to  be  implied 
from  the  statement  in  the  bill,  but  originated  in  a  grant  known 
and  shown  to  the  Court. 

This  is  clearly  proved  by  the  orders  of  the  colonial  govern¬ 
ment  and  other  evidence  in  the  case.  In  Hull  v.  Horner,  Cowp. 
108,  Lord  Mansfield  says,  “  Any  written  evidence  showing 
that  there  was  a  time  when  the  prescription  did  not  exist,  is 
an  answer  to  a  claim  founded  on  prescription.”  Co.  Lit. 
115  a. 


73 


2.  The  grant  did  not  pass  a  franchise  of  a  ferry,  but  merely 
the  liberty  of  receiving  the  profits  ;  and  that  only  during  the 
pleasure  of  the  government. 

In  construing  the  order  of  1640,  by  which  “the  ferry  be¬ 
tween  Boston  and  Charlestown  is  granted  to  the  college,”  the 
general  course  of  legislation  on  the  subject  of  this  and  other  fer¬ 
ries  may  be  well  taken  into  view.  In  the  preamble  to  a  re¬ 
vised  statute  dated  1636,  1640,  1642,  it  is  recited,  that  the 
government  had  given  the  revenue  of  the  ferry  for  the  encour¬ 
agement  of  the  college.  Anc.  Charters  &c.  78.  In  1 659  the  gen¬ 
eral  court  order,  that  “  besides  the  profit  of  the  ferry  formerly 
granted  to  the  college,  which  shall  be  continued ,”  100Z.  shall  be 
paid  yearly  to  the  college,  and  this  to  continue  during  the  pleas¬ 
ure  of  the  country.  Anc.  Charters  &c.  80.  By  a  provincial 
act  of  1695  it  is  provided,  that  boats  shall  be  constantly  kept  on 
either  side  of  the  water  at  Charlestown  ferry,  the  ferrymen  on 
each  side  to  have  a  separate  interest,  and  that  the  ferry  shall  not 
be  leased  out  otherwise  ;  and  that  all  the  members  of  the  general 
assembly  shall  be  ferriage-free  at  all  ferries,  in  their  passing  to 
and  from  the  assembly.  Anc.  Chart.  &c.  281.  The  St.  9  Ann. 
c.  1,  recites  that  the  treasurer  of  the  college  had  attended  with 
the  lease  of  the  ferry,  which  had  several  years  to  run,  and  enacts 
that  notwithstanding  the  lease ,  there  shall  be  three  sufficient  suita¬ 
ble  boats ,  and  that  they  shall  be  three  several  separate  interests, 
not  all  of  one  town.  It  appears  from  the  college  records,  that 
in  1780  the  treasurer  was  directed  to  order  the  necessary  re¬ 
pairs  of  the  sheds  on  each  side  of  the  ferry,  and  to  lay  the  cost 
before  the  general  court  for  allowance.  And  further,  the  statute 
of  May  16,  1781,  (St.  1780,  c.  42,)  passed  after  the  formation 
of  the  state  constitution,  manifests  a  continued  control  over  this 
public  right.  That  act  prohibited  the  ferrymen  from  making  a 
common  stock  of  their  interest,  under  a  penalty  ;  required  that 
no  master  ferryman  should  be  appointed  by  the  college  without 
the  annual  approbation  of  the  selectmen  of  Charlestown  ;  and 
declared  that  the  appointment  of  ferrymen  by  the  college,  should 
not  be  for  a  longer  term  than  one  year.  And  last  of  all,  the  act 
of  1784  incorporating  the  proprietors  of  Charles  river  bridge, 
was  made  without  asking  the  consent  of  the  college  and  without 

10 


74 


their  interfering  in  its  enactment.  It  appears  then  that  none  of 
the  essential  attributes  of  property  belonged  to  or  were  exer¬ 
cised  by  the  college,  except  receiving  the  revenue.  The  legis¬ 
lature  constantly  exercise  the  dominion  which  belongs  to  owner¬ 
ship  ;  and  although  they  do  not  withdraw  the  income,  still  they 
exempt  from  ferriage  whom  they  see  fit,  and  prescribe  the  man¬ 
ner  in  which  the  ferry  shall  be  leased  or  managed  ;  and  at  last, 
they  deprive  the  college  of  the  future  increase  of  the  income  of 
the  ferry,  and  fix  its  rate  at  200?.  for  forty  years  to  come. 

Further,  the  college  could  not  have  taken  any  thing  under  the 
order  of  1640,  in  the  nature  of  an  estate,  for  they  were  then  a 
voluntary  association.  They  could  not  be  grantees.  They 
were  not  incorporated  until  1650  ;  which  is  a  strong  circum¬ 
stance  to  show  that  the  grant  was  during  the  pleasure  of  the 
general  court.  2  H.  7,  13 ,  pi.  16. 

3.  If  however  the  franchise  of  a  ferry  was  granted,  it  was  in 
no  sense  exclusive  of  the  right  to  grant  other  ferries  or  bridges, 
but  confined  solely  to  the  landing  places. 

The  plaintiffs  assert  that  the  ferry  had  certain  termini, 
namely,  the  lower  or  southerly  part  of  Charlestown  and  the 
northerly  part  of  Boston,  and  within  these  limits  they  allege  it 
to  have  been  exclusive.  In  terms  the  grant  contained  nothing 
exclusive,  nor  did  it  subject  the  college  to  any  duty  or  obligation 
whatever  for  the  support  of  the  ferry. 

No  judicial  construction  of  an  original  grant  of  a  ferry  is  to 
be  found  in  the  English  books.  The  cases  relate  solely  to  pre¬ 
scriptive  ferries ;  and  although  the  foundation  of  these  is  pre¬ 
sumed  to  he  laid  in  grant,  and  in  practice  they  have  received  a 
most  liberal  extension,  yet  such  a  franchise  excludes  those  only 
who  interfere  without  right  or  authority.  Churchman  v.  Tunstal, 
Hardr.  162;  Blissettv.  Hart,  Willes,  508;  Anonymous,  1  Ves. 
sen.  476  ;  Tripp  v.  Frank,  4  T.  R.  668  ;  Cruise’s  Dig.  tit. 
34,  §  8. 

By  the  law  of  England,  a  ferry,  although  sui  generis,  is  not 
inconsistent  with  the  general  principles  of  that  law  regarding 
highways.  A  public  privilege  and  a  private  right  unite  to  form 
a  ferry  ;  the  public  privilege  of  passing  across  the  water,  and  the 
private  right  of  carrying  passengers  and  receiving  the  toll. 


75 


A  prescription  cannot  be  maintained  against  the  public  with¬ 
out  the  existence  of  some  equivalent.  In  general,  it  cannot  be 
claimed  in  a  highway.  In  22  Ass.  pi.  58,  it  is  said  the  com¬ 
plaint  was  that  the  toll  was  outrageous,  and  it  was  claimed  as 
toll-thorough.  Thorpe  there  said,  that  toll-thorough  was  an  op¬ 
pression  of  the  people,  and  that  it  was  against  common  right. 
Toll-traverse  may  be  by  prescription  or  grant ;  but  toll-thorough 
cannot  be  by  either  grant  or  prescription.  Fitz.  N.  B.  (9 th  ed.) 
227,  note  c  ;  2  Roll.  Abr.  522,  Toll.  The  inheritance  of  ev¬ 
ery  man  in  the  king’s  highway  is  prior  to  all  prescription.  Smith 
v.  Shephard,  Moor,  574;  Truman  v.  Walgham,  2  Wils.  296  ; 
Keilw.  148,  pi.  29.  The  king  cannot  grant  toll  to  be  taken  in 
the  highway,  which  is  free  ;  but  pontage  and  murage  may  be 
granted,  because  there  is  quid  pro  quo  ;  and  no  longer  than  the 
bridge  is  maintained  for  the  use  of  the  subjects,  or  the  wall  shall 
continue  for  the  defence  of  the  subjects,  shall  the  toll  be  demand¬ 
ed.  Darcy  v.  Allin,  Noy,  176.  At  least  the  prescription 
must  show  an  obligation  to  repair  and  maintain  the  wray,  to  en¬ 
title  the  party  to  his  claim  of  toll ;  and  must  reach  back  as  far 
as  the  reign  of  Richard  I.  2  Bl.  Com.  29  ;  2  Inst.  238  ;  Co. 
Lit.  1135  ;  Gravesend  case ,  2  Brownl.  &  Gould.  181  ;  JYotting- 
ham  v.  Lambert,  Willes,  111.  The  English  courts  havre  been 
anxious  to  narrow  these  exclusive  claims.  Wilkes  v.  Kirby,  2 
Lutw.  1519.  So  in  this  state.  Arundel  v.  M‘  Culloch,  10  Mass. 
R.  70. 

In  the  case  at  bar  we  contend,  that  there  is  neither  a  pre¬ 
scription  nor  a  grant  of  a  franchise.  The  ferry  could  not  have 
been  prescriptive,  for  there  was  no  corresponding  obligation  im¬ 
posed  on  the  college  to  maintain  it.  But  suppose  there  was 
an  absolute  grant  in  1640,  we  say  it  was  confined  to  the  re¬ 
spective  landing  places  of  the  ferry  as  they  then  existed.  Webb's 
case,  8  Co.  92.  In  Ipswich  v.  Browne,  Savil,  11,  14,  it  was  held, 
that  a  ferry  is  in  respect  of  the  landing  place,  and  not  in  respect 
of  the  water.  13  Vin.  208,  Ferry;  Com.  Dig.  Piscary,  B. 
And  in  each  ferry  the  land  on  both  sides  ought  to  belong  to  the 
owner  of  the  ferry.  Ibid. 

The  plaintiffs  must  contend,  that  a  grant  of  a  license  by 
the  legislature,  coupled  with  an  interest  in  its  execution,  not 


76 


merely  passes  the  license  itself,  but  prohibits  succeeding  legisla¬ 
tures  from  giving  any  other  license  of  a  like  kind.  The  com¬ 
mon  law,  it  is  apprehended,  affords  no  countenance  to  such  doc¬ 
trine.  The  common  law  enables  the  owner  of  a  franchise  to 
prohibit  any  one  without  license  or  authority,  from  exercising  a 
similar  right  to  his  prejudice.  The  text  in  the  different  abridge¬ 
ments  is  general.  It  is  said,  “  If  I  have  a  ferry  by  prescription 
or  an  ancient  ferry,  and  another  erects  a  ferry  near  the  ancient 
one,  case  lies.”  2  Roll.  Abr.  140,  pi.  4.  Rolle  cites  22  H.  6, 
14  b,  as  the  authority  for  holding  it  to  be  a  nuisance.  Comyn, 
in  bis  Digest,  tit.  Action  upon  the  Case  for  a  JVuisance,  A,  quotes 
Rolle,  and  adds  no  other  authority  except  Churchman  v.  Tun- 
stal,  Hardr.  162,  which  disproves  the  position.  Hale  (in  Fitzh. 
N.  B.  184,  note  a,)  cites  the  same  Year  Book,  22  H.  6,  14,  and 
Blackstone  (3  Com.  219)  cites  Hale. 

The  judicial  colloquy  recorded  in  the  Year  Book  is  shortly  this. 
On  a  question  whether  an  action  would  lie  for  establishing  a 
second  mill  in  the  same  town  where  there  was  already  one,  of 
ancient  continuance,  it  was  resolved  in  the  negative.  Paston 
puts  this  case.  “  If  I  have  a  market  on  Saturday,  and  another 
levies  a  market  or  a  fair  on  the  same  day  in  a  vill  which  is  near 
to  my  market,  so  that  my  market  or  fair  is  impaired,  I  shall  have 
against  him  an  assise  of  nuisance  or  action  on  my  case.  And 
the  same  law  is,  if  I  have  of  ancient  time  a  ferry  in  one  vill  and 
another  levies  another  ferry  near  to  my  ferry,  so  that  the  profit 
of  my  ferry  is  impaired  by  it,  I  shall  have  against  him  an  action 
on  my  case.”  JVewton  replies,  “  Your  case  of  a  ferry  differs 
from  the  case  at  bar,  for  in  your  case  you  are  holden  to  sustain 
the  ferry  and  to  serve  it  and  repair  it  for  the  ease  of  the  com¬ 
mon  people,  and  may  be  grievously  amerced  ;  and  this  is  in- 
quirable  before  the  sheriff’s  tourn,  and  also  before  the  justices  in 
eyre.”  Here  the  discussion  was  on  a  prescriptive  ferry.  That 
the  doctrine  is  true  of  a  tvrongdoer's  interfering  with  an  ancient 
ferry,  we  need  no  authority  from  the  Year  Book  to  prove.  But 
when  it  is  pressed  against  one  claiming  to  act  under  a  license  from 
the  government,  the  rule  is  carried  to  an  unwarrantable  extent. 
Some  express  decision  should  be  required. 


77 


In  Blissett  v.  Hart,  Willes,  512,  note  a,  it  was  held,  that  a 
ferry  is  publici  juris  ;  that  it  is  a  franchise  ;  that  no  person  can 
erect  one  without  a  license  from  the  crown,  and  when  one  is 
erected,  another  cannot  be  erected  without  an  ad  quod  damnum. 
If  a  second  is  erected  without  license,  the  crown  has  a  remedy 
by  a  quo  warranto,  and  the  prior  grantee  has  a  remedy  by  ac¬ 
tion. 

The  expression  that  a  second  ferry  may  not  be  erected  with¬ 
out  license,  implies  that  with  license  it  may  be  erected. 

In  1  Hayw.  N.  Car.  Rep.  459,  on  an  appeal  from  an  order 
of  the  county  court  authorizing  a  ferry  to  be  kept  at  or  near  the 
place  of  one  previously  established,  the  Superior  Court  were 
divided.  Stone  J.  says,  “  The  county  court  are  empowered  to 
establish  ferries.  They  are  the  proper  judges  where  it  is  fit  to 
establish  them.  There  are  two  ferries  established  at  the  same 
place  in  several  parts  of  this  state.  This  proves  the  power  of 
the  county  court  to  establish  them.”  See  also  Long  v.  Beard, 
3  Murph.  N.  Car.  Rep.  57 ;  Stark  v.  JWGowen,  1  Nott  & 
M’Cord,  395. 

It  does  not  appear  that  an  authority  for  setting  up  a  ferry  was 
always  considered  indispensable  by  the  English  courts.  The 
great  question  in  Churchman  v.  Tunstal  was,  whether  the  own¬ 
er  of  land  on  each  side  of  the  river,  who  set  up  a  ferry,  was  not 
in  effect  authorized  to  do  so  by  his  ownership,  without  any  li¬ 
cense.  An  injunction  was  applied  for  to  restrain  the  defendant, 
who  had  set  up  a  ferry  within  three  quarters  of  a  mile  of  an  an¬ 
cient  ferry.  The  court  (of  Exchequer)  refused  the  injunction, 
because  the  privilege  claimed  came  too  near  a  monopoly  and 
restrained  trade,  and  no  precedent  shown.  The  reporter  adds  a 
“  query,  for  contrary  to  22  H.  6,  and  to  precedents  in  like  cas¬ 
es  in  this  court.”  It  is  said  in  2  Anstruther,  608,  that  on  a  new 
bill  in  1660  before  Hale  B.  the  new  ferry  was  suppressed.  It 
is  somewhat  strange,  if  this  authority  had  been  overruled,  Har- 
dres  should  not  have  known  of  it,  when  the  supposed  reversal 
took  place  only  a  year  after  the  decision,  and  that  Hale  should 
not  have  mentioned  it,  in  his  note  to  Fitzherbert.  It  is  observ¬ 
able  however,  that  the  case  is  distinct  in  principle  from  the  rule 
we  are  now  considering,  as  the  defendant  did  not  claim  under  a 
license,  but  under  a  common  law  right. 


78 


In  the  case  of  the  lessees  of  the  dean  and  chapter  of  Dur¬ 
ham,  1  Yes.  sen.  476,  who  applied  for  an  injunction  to  restrain 
certain  watermen  from  using  ferry-boats  on  the  Tyne,  Lord 
Hardwicke  did  not  appear  to  be  willing  to  admit  the  ex¬ 
clusive  claim,  nor  did  he  advert  to  the  necessity  of  an  ad  quod 
damnum  to  justify  the  defendants.  He  denied  the  application, 
upon  the  insufficiency  of  the  affidavits  to  prove  that  boats  enough 
were  kept  to  answer  the  wants  of  the  population  of  Newcastle, 
and  he  observed,  “  this  is  like  a  ferry  on  the  Thames  and  pas¬ 
sage  boats  to  Gravesend,  which  have  a  sole  right  of  carrying, 
yet  other  wherries  do  carry  every  day,  and  it  is  not  held  an  in¬ 
fringement  of  that  right.” 

The  decisions  in  regard  to  fairs  and  markets,  affirm  the  prin¬ 
ciple,  that  with  a  license  a  second  ferry  may  be  set  up.  Unless 
the  new  market  is  set  up  within  seven  miles  of  the  old  one,  it  is 
not  a  nuisance  ;  and  this  without  any  ad  quod  damnum.  Bract. 
233  ;  Fitzh.  N.  B.  184,  note  a.  In  Yard  v.  Ford ,  2  Saund. 
175,  which  was  an  action  on  the  case  for  setting  up  a  market 
without  any  lawful  warrant  or  authority,  to  the  nuisance  of  an 
ancient  market,  Twysden  J.  said  that  the  plaintiff  was  entitled 
to  judgment,  as  the  defendant  was  an  apparent  wrong-doer,  but 
“  that  if  the  defendant  had  a  patent  to  levy  his  market,  perhaps 
it  might  be  more  doubtful.” 

It  is  not  denied  that  the  identical  franchise  cannot  be  bestow¬ 
ed  by  the  crown  on  a  second  grantee  ;  but  that  a  grant  of  a 
similar  franchise  or  thing  may  be  made  upon  an  ad  quod  dam¬ 
num,  duly  returned,  is  very  clear.  In  Rex  v.  Sir  Oliver  Butler, 
3  Lev.  220,  a  grant  had  been  made  upon  a  writ  of  ad  quod 
damnum  to  Butler,  to  have  a  market  at  Chatham ;  and  on  a  sci. 
fac.  to  repeal  this  grant,  it  was  alleged  that  the  city  of  Roches¬ 
ter  had  a  prior  grant  of  a  market  within  a  mile  and  a  half  of 
Chatham,  and  that  the  ad  quod  damnum  had  been  executed 
surreptitiously.  The  second  patent  was  held  void,  but  Levinz 
adds,  that  “  the  defendant  sued  another  writ  of  ad  quod  damnum 
and  took  a  new  patent,  which  was  granted  because  a  market  at 
Chatham  u?as  very  convenient,  if  not  (absolutely)  necessary  in 
respect  of  navigation,  and  the  shipping  and  stores,  and  the  la¬ 
bourers  about  the  shipping  there.” 


79 


Thus  it  appears,  that  the  question  whether  the  privilege  claim¬ 
ed  is  or  is  not  a  direct  interference  with  an  elder  one,  is  left  to 
the  traverse  on  the  ad  quod  damnum.  And  no  doubt  it  is  prac¬ 
tically  decided  by  public  convenience,  as  an  inquiry  of  this 
kind  necessarily  must  be.  If  the  public  convenience  counter¬ 
balances  the  remote  or  consequential  loss  to  the  individual,  then 
the  return  would  unquestionably  be  in  favour  of  a  new  grant  or 
license.  Hale  De  Portibus  Maris ,  (Hargr.  Tr.)  59,  60. 

There  is  an  analogy  between  the  exercise  or  control  of  these 
public  rights,  and  the  discontinuance  of  ways,  and  of  passages 
in  navigable  waters,  which  is  another  branch  of  prerogative 
power  entrusted  to  the  executive  authority  for  the  public  good. 
These  rights,  as  they  affect  the  public,  may  not  only  be  changed 
by  act  of  parliament,  but  by  writ  of  ad  quod  damnum,  and, 
perhaps,  by  commissioners  of  sewers,  if  they  found  it  would  be 
for  the  advantage  of  the  whole  land.  Rex  v.  Montague,  4 
Barnw.  &l  Cresw.  603 ;  Fitzh.  N.  B.  226. 

Further,  if  the  owner  of  a  market  does  not  provide  sufficient 
accommodation  for  the  public,  he  cannot  maintain  any  action 
for  an  interference  with  his  right,  against  those  who  undertake 
to  supply  his  deficiency.  Prince  v.  Lewis,  5  Barnw.  & 
Cresw.  363. 

Now  in  the  amended  bill  the  plaintiffs  admit,  for  the  pur¬ 
poses  of  this  hearing,  that  public  necessity  or  convenience 
did  require  another  bridge.  If  they  had  an  exclusive  right, 
they  ought  to  have  supplied  the  want.  Not  having  done  so,  the 
legislature  might  authorize  any  one  to  perform  this  public  duty. 
In  Mosley  v.  Walker,  7  Barnw.  &  Cresw.  52,  cited  on  the 
other  side,  Lord  Tenterden  says,  “  We  are  not  called  upon,  on 
the  present  occasion,  to  lay  down  as  a  general  rule  and  princi¬ 
ple  of  law,  that  the  grant  of  a  market  for  the  sale  of  certain 
things  necessarily  carries  with  it  an  exclusion  of  the  right  of 
sale  of  similar  commodities  in  a  private  house,  whether  the  market 
is  convenient  or  not.”  The  consideration  failing  on  which  the 
grant  was  made,  that  is,  the  public  convenience,  no  previous  in¬ 
quiry  in  order  to  put  an  end  to  it  seems  to  be  necessary.  When 
the  deficiency  is  proved,  it  is  a  sufficient  answer  to  the  claim. 

From  the  authorities  now  examined  it  may  be  deduced  as 


80 


the  law  of  England  ; — 1.  That  a  ferry  is  an  incorporeal  here¬ 
ditament  and  a  local  franchise,  having  respect  only  to  the  land¬ 
ing  places  : — 2.  That  a  person  without  a  license,  interfering  with 
an  ancient  ferry,  is  considered  a  wrong-doer,  and  liable  in  a 
suit  for  damages  : — 3.  That  upon  an  ad  quod  damnum  a  new 
ferry  may  be  licensed.  Beyond  this,  that  law  is  silent. 

In  this  commonwealth  no  provision  has  ever  been  made  for 
issuing  a  writ  of  ad  quod  damnum.  The  power  of  establishing, 
altering  and  discontinuing  roads  and  ferries,  has  been  from  time 
to  time  delegated  to  subordinate  tribunals.  The  subject  appears 
to  have  been  entrusted  to  their  discretion.  In  no  instance  has 
a  license  granted  by  them  been  deemed  exclusive. 

When  navigable  waters  were  to  be  permanently  obstructed, 
resort  has  been  had  to  the  supreme  power  of  the  state,  the 
legislature.  The  control  of  this  portion  of  the  eminent  domain 
was  reserved  by  the  legislature ;  and  the  history  of  our  legisla¬ 
tive  proceedings  may  be  appealed  to  with  safety  for  the  support 
of  this  position.  The  petition  to  the  legislature  stating  the  pub¬ 
lic  wants,  is  followed  by  an  order  of  notice ;  sometimes  a  view¬ 
ing  committee  is  appointed ;  then  a  committee  of  both  houses 
to  give  the  parties  a  hearing ;  which  terminates  in  a  report  as 
the  basis  for  the  conduct  of  the  legislature.  The  proceedings 
from  time  to  time  in  relation  to  the  bridge  of  the  plaintiffs, 
and  the  subsequent  ones  connected  with  Boston,  are  according 
to  the  course  pursued  both  before  and  since  the  revolution. 

From  the  adoption  of  the  state  constitution  in  I7S0  to  1811, 
among  the  various  statutes  passed  authorizing  bridges  to  be  built 
over  navigable  waters,  there  are  but  four  instances  in  which  the 
subject  of  compensation  is  brought  into  notice ;  viz.  Essex 
bridge  in  1787,  Essex  Merrimack  bridge  in  1792,  Haverhill 
bridge  in  1793,  and  Andover  bridge  in  1794.  During  this  pe¬ 
riod  there  were  fourteen  instances  where  bridges  were  author¬ 
ized  to  be  built  at  or  near  ferries,  as  mentioned  in  the  acts,  and 
no  compensation  was  provided  ;  besides  a  multitude  of  cases 
where  probably  ferries  were  in  use,  the  existence  of  which  is 
not  noticed. 

That  a  grant  of  a  ferry  does  not  ex  vi  termini  import  any  ex¬ 
clusive  right,  except  at  the  particular  landing  places,  is  not  only 


81 


shown  by  the  uniform  course  of  legislation  upon  this  subject, 
and  in  relation  to  this  particular  ferry  itself,  but  it  follows  from 
the  nature  of  our  country  and  the  circumstances  under  which 
it  was  settled.  If  the  doctrine  contended  for  by  the  plain¬ 
tiffs  had  been  adopted,  the  first  grant  of  a  ferry  on  the  Merri¬ 
mack  at  Newbury,  or  on  the  Connecticut  at  Springfield,  would 
have  carried  the  right  to  the  river  in  its  whole  extent ;  for  no 
other  ferry,  at  that  early  period,  could  have  been  set  up,  which 
would  not  have  drawn  away  the  custom  from  the  one  already  es¬ 
tablished.  This  doctrine  of  exclusive  privilege  was  not  then 
entertained.  It  has  since  been  engrafted  by  cupidity  upon 
possession.  The  first  settlers  came  with  a  fixed  hostility  to  ex¬ 
clusive  privileges  of  all  kinds,  and  as  early  as  1641  they  de¬ 
clared,  that  “  there  shall  be  no  monopolies  granted  or  allowed 
amongst  us,  but  of  such  new  inventions  that  are  profitable  to  the 
country,  and  that  for  a  short  time.”  Anc.  Charters,  &c.  170. 

4.  Whatever  may  have  been  the  rights  of  the  college  in  the 
ferry,  the  college  did  not  grant  or  convey  the  same  to  the  plain¬ 
tiffs  for  the  term  of  forty  years,  mentioned  in  the  act  of  1784. 

No  grant  is  produced  and  no  lost  grant  is  supposed.  There 
is  no  chasm  in  the  college  records.  No  vote  is  exhibited  au¬ 
thorizing  the  transfer  or  showing  that  any  one  had  been  made. 
The  proceedings  of  the  legislature  furnish  no  evidence  that  such 
grant  was  made,  or  that  the  rights  of  the  college  were  surren¬ 
dered  by  the  college,  and  then  granted  by  the  government  to 
the  plaintiffs.  If  the  franchise  was  surrendered,  it  was  extin¬ 
guished  ;  and  if  it  exists,  it  must  have  been  re-created  by  ex¬ 
press  enactment.  Finch’s  Law,  164,  c.  14.  There  is  no  room 
to  presume  a  grant  from  the  college  ;  the  operative  instrument 
of  transfer  must  be  the  act  of  incorporation.  The  plaintiffs  al¬ 
lege  that  the  payment  and  receipt  of  the  annuity,  and  ceasing  to 
keep  the  ferry,  furnish  ground  for  presuming,  not  a  grant,  but 
the  agreement  of  the  college  to  the  act  of  the  legislature.  Their 
silence  or  acquiescence  proves  nothing.  If  A  suffers  B  to  con¬ 
vey  his  property  to  C  without  making  known  his  title,  it  amounts 
at  most  only  to  an  estoppel.  But  here  C  knew  of  A’s  title. 
Certainly  no  grant  of  A’s  rights  is  to  be  inferred  in  such  a  case. 
Besides,  no  consideration  is  given  to  the  college  for  the  sup- 

11 


82 


posed  grant.  They  were  already  in  the  receipt  of  the  200/.  a 
year.  The  conclusion  to  be  drawn  from  the  acquiescence  of 
the  college,  and  from  the  omission  of  the  petitioners  for  the 
bridge  to  treat  with  them  for  their  supposed  rights,  is,  that  nei¬ 
ther  party  believed  any  such  rights  to  exist.  The  right  to  dis¬ 
pose  of  and  manage  these  navigable  waters  was  considered  to 
be  in  the  commonwealth  alone,  and  hence,  instead  of  providing 
in  the  act  of  1784,  that  the  college,  at  the  end  of  forty  years, 
should  be  put  in  possession  of  the  bridge,  which  is  stated  to  be  a 
substitute  for  the  ferry,  it  is  to  revert  to  the  commonwealth. 

The  ferry  was  an  hereditament,  and  lay  in  grant,  and  not  in 
livery  ;  and  by  our  St.  1783,  c.  37,  §  4,  could  pass  only  by 
deed  duly  acknowledged  and  recorded. 

5.  But  if  the  plaintiffs  had  the  right  of  the  college  for  forty 
years,  they  ceased  to  have  it  on  the  termination  of  that  period. 

The  college  received  no  consideration  for  the  extension  of 
the  term.  The  annuity  was  not  increased,  notwithstanding  the 
increase  of  population  and  travel.  The  assent  of  the  college 
was  not  asked  nor  given. 

6.  Whatever  right  the  college  might  have  to  a  ferry,  they 
could  convey  no  right  to  the  plaintiffs  as  a  corporation  to  build 
a  bridge.  Payne  v.  Partridge,  1  Show.  243,  257 ;  8.  C. 
1  Salk.  12  ;  S.  C.  3  Mod.  293. 

7.  No  such  exclusive  right  as  is  claimed  by  the  plaintiffs  wras 
conveyed  by  the  legislature,  by  the  act  of  incorporation  for  the 
term  of  forty  years. 

That  the  act  of  incorporation  is  a  contract,  we  do  not  deny  ; 
and  if  the  recent  act  violates  that  contract,  and  so  is  repugnant 
to  the  constitution  of  the  United  States,  we  concede  that  it  is  in 
the  power  of  the  Court  to  declare  the  recent  act  to  be  void. 
But  so  much  respect  is  due  to  any  legislative  act  solemnly 
passed,  that  the  Court  will  presume  it  to  be  constitutional,  until 
the  contrary  clearly  appears.  Hilton  v.  United  States,  3  Dal¬ 
las,  175  ;  Colder  v.  Bull,  ibid.  395,  399;  Cooper  v.  Telfair, 
4  Dallas,  18;  Fletcher  v.  Peck,  6  Cranch,  12S  ;  Adams  v. 
Hoive,  14  Mass.  R.  345. 

We  contend  that  the  contract  entered  into  in  1785,  was,  that 
the  proprietors  of  the  bridge  should  be  a  corporation  for  the 


83 


term  of  forty  years,  and  that  they  should  have  authority  to  take 
toll,  for  their  sole  benefit,  of  all  persons  who  should  pass  over  the 
bridge  during  that  period.  This  is  the  whole  of  the  exclusive 
right. 

An  exclusive  grant  to  the  extent  claimed,  would  have  been  a 
violation  of  the  constitution  of  the  commonwealth.  Exclusive 
privileges  can  be  granted  only  for  “  the  consideration  of  servi¬ 
ces  rendered  to  the  public.”  Bill  of  Rights,  art.  6.  In  the 
choice  of  modes  to  prevent  any  abuse  of  the  power  of  reward¬ 
ing  such  services,  the  only  safe  and  practicable  one  which  oc¬ 
curred  to  the  makers  of  the  constitution,  was,  to  require  that 
the  services  should  be  rendered  before  they  should  be  reward¬ 
ed  ;  in  which  case  the  nature  and  value  of  them  could  be  as¬ 
certained. 

A  grant  made  by  the  public  is  not  to  be  extended  by  impli¬ 
cation.  A  grant  made  by  the  king  at  the  suit  of  the  grantee, 
shall  be  taken  most  beneficially  for  the  king  and  against  the 
party.  It  shall  not  enure  to  any  other  intent  than  that  which 
is  precisely  expressed.  2  Bl.  Com.  347  ;  Royal  Fishery  of 
the  JBanne,  Davies,  157;  Finch’s  Law,  100;  Legat's  Case, 
10  Co.  112;  The  Elsebe,  5  Rob.  Adm.  Rep.  162;  The  King 
v.  Capper,  5  Price,  217  ;  Portland  Rank  v.  Apthorp,  12  Mass. 
R. 252. 

8.  Still  more  strongly,  if  possible,  is  all  idea  of  such  an  ex¬ 
clusive  right  negatived  by  the  language  of  the  extension  of  the 
charter  in  1792.  The  plaintiffs  at  that  time  set  up  a  claim 
to  this  exclusive  right  by  purchase  from  the  college.  The  com¬ 
mittee  of  the  legislature,  in  their  report  on  the  plaintiffs’  re¬ 
monstrance,  deny  the  existence  of  the  exclusive  right  claimed 
to  build  over  the  waters  of  Charles  river,  and  the  act  itself  of 
1791  is  silent  as  to  any  such  right. 

Fletcher  on  the  same  side.  This  case,  however  important  it 
may  be  in  a  pecuniary  point  of  view,  to  the  parties  themselves, 
is  of  much  greater  importance  in  reference  to  a  free  course  of 
legislation.  The  general  welfare  is  closely  connected  with  it. 
The  present  age  is  remarkable  for  the  progress  of  improve¬ 
ments  ;  which  is  the  natural  result  of  a  liberal  competition. 


84 


The  plaintiffs  seek  to  annul  a  law  opening  another  avenue 
to  the  large  and  increasing  metropolis  of  Massachusetts.  This 
law  was  not  enacted  through  inadvertence.  The  object  of  it 
had  been  several  years  under  the  consideration  of  the  legisla¬ 
ture,  and  the  plaintiffs  had  again  and  again  urged  their  ob¬ 
jections  ;  which  were  deemed  invalid. 

The  defendants  have  been  charged  with  a  disposition  to  in¬ 
vade  private  property.  They  maintain  as  strongly  as  any  one, 
that  property  is  to  be  protected,  and  that  contracts  should  be 
held  inviolable.  They  have  no  greater  interest  in  the  present 
case  than  the  rest  of  the  community.  Nor  have  they  acted 
without  a  due  regard  to  the  rights  of  the  phintiffs.  It  is 
not  to  be  concealed,  that  this  claim  on  the  part  of  the  plain¬ 
tiffs  is  not  new.  In  the  cases  of  the  West  Boston  bridge  and 
the  Canal  bridge,  this  same  question  of  exclusive  right  under 
the  college  and  under  the  plaintiffs’  charter,  was  presented  to 
the  consideration  of  the  legislature,  and  was  disallowed.  Some 
of  the  most  distinguished  lawyers  in  the  commonwealth  were 
active  in  obtaining  the  grants  for  those  bridges,  and  the  plain¬ 
tiffs  have  acquiesced  for  more  than  thirty  years  in  the  supposed 
violation  of  their  rights. 

The  claim  now  made  will  not  bear  examination.  It  cannot 
be  stated,  in  any  form,  so  as  not  to  be  bad  on  a  demurrer  at 
common  law. 

The  plaintiffs  allege  that  they  were  authorized  to  build  a 
bridge  at  or  near  the  place  where  an  ancient  ferry  was  kept ; 
but  the  expression  in  their  charter  is  in  the  place.  They  allege 
that  their  bridge  was  designed  to  accommodate  a  certain  line  of 
travel  leading  to  and  from  the  southerly  part  of  Charlestown 
and  the  northerly  part  of  Boston.  If  this  means  any  thing,  it 
means  a  line  of  travel  from  Charlestown  square  to  the  north 
end  of  Boston  ;  and  with  that  the  defendants  do  not  interfere. 
But  in  truth,  Charles  river  bridge  was  intended  to  accommodate 
the  whole  country.  Travel  came  from  the  east,  north  and 
west,  from  other  states  as  well  as  from  different  parts  of  our 
own  ;  and  the  idea  of  a  line  of  travel  taking  in  all  this  is  pre¬ 
posterous.  West  Boston  bridge  was  upon  this  line  of  travel,  if 
it  can  be  so  called,  as  much  as  Warren  bridge. 


85 


They  do  not  allege  that  by  their  act  of  incorporation  they 
had  an  exclusive  right  over  these  waters.  But  they  set  out  that 
there  was  an  ancient  ferry  owned  by  the  college,  and  that  when 
their  act  was  passed,  the  college  consented  to  accept  of  them 
200 1.  per  annum,  in  satisfaction  and  as  a  compensation  for  the 
exclusive  right  to  the  whole  ferry,  and  thus  they  became  suc¬ 
cessors  and  assignees  of  the  college  for  forty  years,  and  so 
were  entitled  to  erect  a  bridge  :  a  palpable  non  sequitur. 

The  original  charter  to  the  proprietors  of  Charles  river  bridge 
has  expired,  and  if  the  act  of  1791  has  not  been  accepted  and 
the  conditions  been  performed  by  them,  they  have  no  longer 
any  right. 

We  allege  that  they  had  an  agency  in  procuring  the  extension 
of  their  charter ;  but  this  they  deny.  It  is  certain  they  did 
not  apply  fora  charter  to  the  proprietors  of  West  Boston  bridge, 
but  remonstrated,  and  represented  that  the  profits  received  had 
not  amounted  to  eleven  per  cent,  upon  the  original  cost.  If 
their  bridge  was  so  unpromising  and  they  did  not  interfere  in 
the  extending  of  their  charter,  there  can  be  no  presumption  of 
their  accepting  the  extension.  As  it  was  a  grant  imposing  lia¬ 
bilities  and  increasing  burdens,  there  ought  to  be  proof  of  an 
express  acceptance.  They  produce  no  vote  to  that  effect  of 
an  earlier  date  than  1802.  They  kept  a  bridge  indeed,  but  it 
was  by  virtue  of  the  original  charter  ;  and  nothing  was  done  by 
them  by  which  they  would  be  bound,  previous  to  1802.  A 
vote  of  acceptance  in  that  year  would  have  been  too  late,  but 
they  produce  no  such  vote.  Merely  entering  the  act  on  their 
records  neither  implies  acceptance  nor  non-acceptance.  It 
would  not  have  estopped  them  from  denying  any  acceptance  ; 
and  so  they  understood  it,  since  in  1826  they  passed  a  vote  ex¬ 
pressly  accepting  the  extension.  This  was  too  late.  The  legis¬ 
lature  ought  to  have  been  informed  of  the  acceptance,  as  it 
might  affect  their  proceedings  in  respect  to  other  bridges.  We 
had  applied  for  a  new  bridge  in  1823.  [Parker  C.  J.  Is  it 
not  an  answer  to  this,  that  in  the  act  incorporating  the  proprie¬ 
tors  of  the  Warren  bridge  (§  8)  the  legislature  recognise  the 
charter  of  the  plaintiffs  as  being  in  force  ?]  The  question  of 
acceptance  was  not  before  the  legislature,  and  we  think  that 
that  recognition  is  not  an  estoppel. 


86 


The  relinquishment  of  the  double  toll  was  a  condition,  a 
compliance  with  which  was  indispensable  to  the  extension  of 
the  plaintiffs’  charter.  The  proof  is,  that  they  did  not  give  it 
up  immediately  after  the  passage  of  the  act  of  1791.  The  re¬ 
linquishment  ought  to  be  by  some  express  corporate  act. ;  not 
merely  by  ceasing  to  take  the  toll.  For  suppose  that  West 
Boston  bridge  had  not  been  built  within  the  three  years  allowed  ; 
the  complainants  would  then  have  resumed  taking  the  double 
toll,  and  they  could  not  have  been  prevented.  And  most  of 
the  witnesses  say  that  the  ceasing  to  take  the  double  toll  was 
after  the  West  Boston  bridge  was  built. 

The  plaintiffs  allege  that  the  recent  act  is  contrary  to  the 
constitution  of  this  state,  because  it  takes  away  their  property 
without  providing  for  compensation.  We  admit  that  the  legis¬ 
lature  cannot  take  private  property  for  the  use  of  the  public, 
without  making  compensation.  Neither  do  we  deny  that  a 
ferry-right  is  property.  We  contend  however,  that  it  is  real 
property.  It  is  a  local  franchise  ;  of  which  the  owner  may  be 
disseised.  And  for  the  recovery  of  it,  he  might  have  an  assise 
of  novel  disseisin,  (St.  fVestm.  2,  c.  25,)  a  prcecipe  quod  reddat, 
and  an  habere  facias.  These  remedies  are  applicable  only  to 
real  property.  And  if  we  have  taken  their  real  estate,  they 
have  a  remedy  given  expressly  in  our  act  of  incorporation. 
We  have  no  authority  to  take  personal  property,  and  if  we  have 
done  so,  we  are  liable  to  an  action. 

We  contend  that  we  have  not  taken  any  real  property  belong¬ 
ing  to  the  plaintiffs.  The  nature  of  their  estate  is  apparent. 
They  have  their  bridge.  Higher  up  the  river  the  public  have 
the  right.  The  complaint  is  founded  on  the  circumstance,  that 
the  public  have  used  their  property  above  the  bridge,  whereby 
the  plaintiffs  have  sustained  damage.  If  the  public  have  re¬ 
strained  themselves  from  so  using  their  own  property,  doubtless 
we  have  no  right  to  maintain  our  bridge  ;  but  still  we  say  that 
we  have  taken  no  property  from  the  plaintiffs.  The  case  is  pre¬ 
cisely  like  that  of  Callender  v.  Marsh ,  1  Pick.  4 IS.  Though 
the  plaintiffs  may  suffer,  the  loss  is  occasioned  by  a  legiti¬ 
mate  exercise  of  the  power  of  the  public  over  their  own  pro¬ 
perty,  and  is  damnum  absque  injuria.  It  is  a  collision  of  inter- 


87 


est,  not  of  right ;  and  the  interest  of  the  few  must  yield  to  that 
of  the  many.  The  proprietors  of  Charles  river  bridge  ought 
to  be  the  last  persons  to  complain  of  hardship.  They  say  they 
built  their  bridge  for  the  public  benefit,  and  all  they  asked  was 
to  be  reimbursed.  Their  charter  gave  them  a  toll  for  that 
purpose,  and  their  receipts  have  been  equal  to  many  times  the 
amount  of  their  disbursements. 

The  next  question  is,  whether  the  act  of  1826  is  in  violation 
of  the  constitution  of  the  United  States,  as  being  an  act  im¬ 
pairing  the  obligation  of  a  contract. 

The  act  is  within  the  general  scope  of  legislative  authority, 
the  object  of  it  being  to  make  a  highway  over  an  arm  of  the  sea. 
It  is  not  a  wanton  exercise  of  power,  but  was  intended  to  meet 
the  demands  of  the  public.  The  question  of  convenience  and 
necessity  is  to  be  determined  by  the  legislature,  and  is  not  to  be 
rejudged  elsewhere.  The  act  itself  need  not  purport  to  be  found¬ 
ed  on  public  convenience  and  necessity  ;  that  is  implied  in  the 
mere  enactment. 

But  the  plaintiffs  say,  that  although  public  convenience  and 
necessity  might  require  another  bridge,  still  our  act  was  not  re¬ 
quired  ;  that  they  offered  to  make  another  bridge,  or  to  sell  their 
franchise,  or  to  reduce  their  tolls.  If  they  could  under  their 
charter  build  another  bridge,  or  make  a  spur-bridge,  why  did 
they  not  do  so  ?  Their  conduct  shows  that  they  had  little  faith 
in  the  ground  they  assume,  of  a  right  to  the  whole  of  the  river 
between  Boston  and  Charlestown.  They  claim  now,  that  no 
rival  bridge  shall  be  erected  between  Boston  and  Charles¬ 
town.  Formerly  they  claimed  a  right  over  the  waters  as  high 
up  as  West  Boston  bridge.  If  they  go.  upon  principle,  they  must 
exclude  all  injurious  competition,  and  they  were  right  in  oppos¬ 
ing  the  construction  of  that  bridge.  But  they  say,  that  whether 
a  competition  shall  be  lawful  or  not,  depends  on  the  degree. 
There  can  be  no  degree  in  principle.  They  must  either  say 
that  the  legislature  can  authorize  no  competition  at  all,  or  that 
they  may  allow  as  much  competition  as  they  please.  A  very 
large  amount  of  toll  w7as  drawn  off  by  West  Boston  bridge  and 
Canal  bridge,  in  which  the  plaintiffs  acquiesced  ;  and  it  is  absurd 
to  say  that  the  amount  makes  any  difference.  The  question  is 
entirely  within  the  discretion  of  the  legislature. 


88 


The  legislature  are  only  bound  not  to  re-assert  any  right  which 
they  have  before  granted  ;  and  the  question  is,  whether  the  same 
right  has  been  granted  to  Warren  bridge  that  had  been  previously 
granted  to  Charles  river  bridge.  The  plaintiffs  say  that  the 
whole  right  of  transportation  between  Boston  and  Charlestown 
had  been  granted  to  the  college,  and  so  the  grant  of  a  part  of 
it  to  the  Warren  bridge  is  an  infringement  on  the  first  grant. 

It  is  necessary  then  to  consider  what  was  the  right  as  between 
the  government  and  the  college.  This  is  matter  of  record  ;  all 
prescriptive  right  is  excluded.  Until  the  year  1650  the  col¬ 
lege  had  not  interfered  in  the  management  of  the  ferry,  but  had 
only  received  the  income.  It  was  then  provided  by  the  govern¬ 
ment,  that  when  the  lease  should  expire,  the  college  might  dispose 
of  the  ferry  by  lease  or  otherwise,  but  on  condition  that  it  should 
be  under  the  regulation  and  control  of  the  government.  In 

1654  there  was  a  grant  of  100?.  and,  as  we  say,  of  the  revenue 
of  the  ferry,  to  continue  during  the  pleasure  of  the  country.  In 

1655  the  government  lent  the  president  of  the  college  for  his 
personal  expenses,  the  sum  of  30?.,  to  be  repaid  out  of  the 
income  of  the  ferry.  In  1694  and  1710,  acts  were  passed, 
regulating  the  ferry.  In  1780  the  college  made  repairs  on 
certain  sheds  connected  with  the  ferry,  and  directed  the  ex¬ 
penses  to  be  laid  before  the  legislature.  And  lastly,  in  1781, 
the  entire  control  of  the  ferry  was  taken  into  the  hands  of  gov¬ 
ernment.  Our  construction  of  these  and  the  other  proceedings 
relating  to  the  ferry  is,  that  no  grant  of  the  ferry  itself  was 
made  to  the  college,  but  that  they  were  permitted  to  receive 
the  income,  as  a  gratuity.  It  was  suggested  that  there  was  no 
distinction  between  a  grant  of  the  income  and  of  the  thing  it¬ 
self  ;  but  it  may  be  said  as  well,  that  the  grant  of  the  annuity 
makes  the  college  the  owner  or  a  part  owner  of  the  bridge.  The 
words  of  the  grant  of  1 640  might  carry  the  ferry,  but  the  acts 
of  the  government  and  of  the  college,  before  and  after  the  grant, 
give  to  it  a  different  construction.  The  college  was  not  then  a 
corporation ;  and  no  burden  was  imposed  on  them  of  managing 
and  looking  after  the  ferry  ;  but  to  let  them  receive  the  income, 
was  consistent  with  the  intention  of  the  government  and  the  situ¬ 
ation  of  the  college.  The  only  object  was,  to  give  the  college 


89 


some  revenue.  The  government  was  the  patron ;  they  were 
the  beneficiaries.  On  the  application  of  the  college  stating  that 
they  could  manage  the  ferry  to  more  advantage  than  the  gov¬ 
ernment,  they  were  in  1G50  allowed  to  dispose  of  it  on  certain 
conditions.  The  college  could  not  have  been  indicted  for 
not  keeping  boats  and  maintaining  the  ferry.  They  might  have 
declined  doing  so  when  they  pleased,  and  the  government  might 
have  resumed  the  ferry  at  pleasure.  The  course  of  interfer¬ 
ence  on  the  part  of  the  government  rebuts  the  idea  of  a  grant ; 
and  the  interference  was  commensurate  with  the  public  exi¬ 
gencies,  until  the  moment  when  the  ferry  was  superseded 
by  the  bridge.  It  is  idle  to  talk  of  the  consent  of  the  college  to 
the  act  of  1784,  which  takes  away  the  whole  franchise.  It  is 
a  mere  fiction.  They  were  not  a  party  to  the  act,  and  had  no 
voice  in  the  matter.  A  provision  is  indeed  made  for  their 
benefit,  but  they  made  no  application  for  it.  In  1800,  it  is  true, 
they  recite  their  consent,  but  it  was  with  a  view  of  gaining  some¬ 
thing.  Whatever  they  had  received,  had  been  bestowed  as  a 
bounty. 

Whenever  the  ferry  was  spoken  of,  it  was  understood  as  per¬ 
fectly  defined  ;  it  was  from  one  landing-place  to  the  other.  In 
Savil,  it  is  said,  the  ferry  is  in  respect  of  the  landing-places.  The 
plaintiffs  contend,  that  the  exclusive  right  of  transportation  be¬ 
tween  Boston  and  Charlestown,  to  the  end  of  time,  and  without 
any  reference  to  increase  of  population,  was  given  to  the  college. 
Such  a  position  is  not  creditable  to  the  intelligence  of  our  an¬ 
cestors.  They  came  to  this  country  with  a  hatred  of  monopo¬ 
lies,  and  they  ordered,  not  that  no  monopoly  should  be  granted, 
but  that  none  should  be  allowed.  They  foresaw  the  augmentation 
of  population  and  the  increasing  wants  of  the  country.  There 
were  several  ferries  already  from  Boston,  and  if  in  this  case 
they  threw  away  public  rights  in  the  manner  supposed,  it  is  a  sol-' 
itary  instance.  They  knew  the  difference  between  an  indefea¬ 
sible  grant  and  one  revocable  at  pleasure,  and  between  a  grant 
which  was  exclusive  and  one  which  was  otherwise.  (See  the  or¬ 
der  in  1648  respecting  the  Neponset  ferry.) 

And  this  exclusive,  interminable  right  of  the  college,  is  sold 
for  an  annuity  of  only  200 1.  per  annum  !  The  plaintiffs  set 
12 


90 


out  that  they  are  the  assignees  of  the  college,  and  owners  of 
this  exclusive  right.  One  would  naturally  expect  to  see  some 
parchments  and  formality  in  a  negotiation  of  such  magnitude  ; 
but  the  whole  turns  out  to  be  a  fiction.  No  deed  or  vote  of  the 
college  is  pretended  ;  there  has  been  no  loss  of  any  instrument ; 
but  still  the  plaintiffs  say  they  are  grantees,  because  the  colldge 
ceased  to  keep  up  the  ferry  and  received  the  annuity.  If  the 
college  did  own  this  ferry  exclusively  ?nd  absolutely,  the  de¬ 
struction  of  it  was  a  high-handed  interference  on  the  part  of  the 
government.  But  it  is  said  a  compensation  was  made.  A  sum 
fixed  by  the  legislature  was  given,  but  that  was  not  a  consti¬ 
tutional  compensation.  Vanhorne.  v.  Dorrance,  2  Dallas,  315. 
The  college  had  a  right  to  a  trial  by  jury.  Their  acquiescence 
does  not  change  the  nature  of  the  act.  The  plaintiffs  say,  that 
by  reason  of  the  payment  of  the  annuity,  they  became  purchas¬ 
ers  of  the  ferry,  whether  the  college  consented  or  not,  and  so 
they  were  equitable  assignees.  [  Webster .  We  say  the  evidence 
shows  a  consent.]  The  college  ceased  to  keep  up  a  ferry  and 
received  the  annuity,  but  these  acts  do  not  show  that  the  col¬ 
lege  were  a  party  to  the  act  of  1784.  The  proceedings  of  the 
legislature  were  on  the  ground,  that  the  college  had  no  control 
of  the  ferry.  The  college  would  not  wish  to  quarrel  with  the 
government,  which  had  been  their  benefactor,  but  it  is  extraor¬ 
dinary  that  they  should  have  been  willing  to  yield  all  their 
rights  to  the  plaintiffs.  The  plaintiffs  did  not  pay  the  annuity  ; 
it  came  out  of  the  public,  out  of  the  tolls.  The  government 
did  not  intend  that  the  annuity  should  be  considered  as  a  com¬ 
pensation  to  the  college,  and  according  to  the  authorities  on 
the  other  side,  it  could  not  be  so  ;  it  was  a  gratuity  from  the 
government.  There  was  no  increase  of  the  amount  which  the 
college  had  been  accustomed  to  receive,  and  yet  the  bridge, 
at  the  end  of  forty  years,  was  to  revert,  not  to  the  college,  but 
to  the  government,  saving  to  the  college  a  reasonable  compen¬ 
sation  for  the  income  of  the  ferry.  This  repeis  any  title  in  the 
college,  independent  of  the  pleasure  of  the  government. 

The  plaintiffs  say  that  the  bridge  is  a  substitute  for  the  ferry  ; 
that  they  are  the  successors  and  grantees  of  the  college,  and 
that  they  stand  in  the  same  situation,  as  owners  of  the  ferry.  If 


91 


so,  they  are  subject  to  the  same  regulations  ;  which  they  will 
hardly  admit.  But  they  say  the  legislature  are  restricted  by 
their  grant.  If  so,  then  the  grant  of  the  ferry  is  one  thing  and 
of  the  bridge  another  ;  which  disproves  their  position.  The 
legislature  regulated  the  ferry,  but  if  it  should  undertake  to  reg¬ 
ulate  the  toll-men,  the  plaintiffs  would  deny  its  authority  :  and 
justly  ;  but  they  would  rely,  not  on  the  assignment  of  the  ferry, 
but  on  their  own  charter. 

The  case  is  stripped  of  the  ferry-rights,  and  the  question 
must  be,  whether,  by  the  acts  of  1784  and  1791,  a  contract  was 
made  restraining  the  legislature  from  granting  our  bridge.  Is 
the  act  of  17S4  impaired  by  that  of  1S27,  or  is  the  thing  grant¬ 
ed  re-asserted  ? 

We  might  rely  on  the  plaintiffs’  own  view  of  the  case.  They 
have  not  relied  on  an  exclusive  right  as  derived  from  their 
charter,  but  they  try  to  connect  their  charter  with  the  college 
right.  They  cite  a  case  from  Palmer,  to  show  that  a  bridge 
may  be  substituted  for  a  ferry  ;  but  in  Pain  v.  Patrick,  3  Mod. 
294,  it  is  held,  that  the  owner  of  a  ferry  cannot  convey  a  right 
to  build  a  bridge. 

Their  charter  allows  them  to  erect  a  bridge  at  a  particular 
place,  where  the  ferry  then  was.  The  landing-places  were  well 
known.  If  their  grant  were  construed  most  against  the  grantors, 
it  would  not  give  a  right  to  take  toll  at  any  other  place.  They 
will  not  contend  that  they  can  erect  a  bridge  off  of  the  precise 
spot  where  the  old  ferry  was  kept.  The  fallacy  is,  they  do  not 
consider  themselves  as  the  grantees  of  a  bridge  with  the  right 
to  take  toll  of  persons  going  over  it,  but  they  say  they  have  a 
right  to  take  toll  of  all  persons  passing  between  Charlestown 
square  and  Boston  ;  and  they  liken  their  rights  to  those  of  a 
mill,  to  which  all  persons  belonging  to  the  manor  must  carry 
their  grain  ;  they  say  they  have  a  right  to  make  people  pass 
over  their  bridge,  and  not  merely  to  take  toll  of  those  who  do 
pass.  That  their  charter  will  not  bear  this  construction,  is 
manifest  from  the  authorities  cited.  2  Bl.  Com.  347 ;  The  El- 
sebe,  5  Rob.  Adm.  Rep.  162.  There  is  not  a  word  in  their 
grant,  showing  it  to  be  exclusive.  Every  man  takes  such  a 
grant  subject  to  the  right  of  the  legislature  to  make  a  similar  one 


92 


whenever  public  convenience  and  necessity  shall  require  it. 
But  it  is  asked,  would  any  person  take  such  a  charter  for  a  bridge, 
if  the  legislature  may  immediately  erect  another  bridge  by  the  side 
of  the  first  ?  On  the  other  hand,  we  may  ask,  whether  the  legisla¬ 
ture  would  make  such  a  grant  as  the  plaintiffs  contend  for. 
But  we  may  say  further,  that  such  a  charter  would  be  accepted  ; 
for  the  citizens  have  confidence  in  the  wisdom  and  integrity  of 
the  legislature  ;  they  are  willing  to  believe  that  the  legislature 
will  act  as  the  public  good  shall  demand,  and  will  not  injure  an 
individual  by  a  wanton  exercise  of  power.  There  was  no  ne¬ 
cessity  for  making  so  extensive  a  grant  as  the  plaintiffs  claim  j 
the  Cabots  were  offering  to  build  a  bridge  from  Boston  to  Lech- 
mere  Point  on  much  better  terms  ;  and  the  reason  why  their 
petition  was  not  granted,  was  the  sympathy  felt  for  the  inhabi¬ 
tants  of  Charlestown  on  account  of  their  sufferings  during  the  war. 

The  cases  cited  on  the  other  side  may  be  arranged  in  three 
classes.  First,  where  the  grant  of  the  legislature  is  repealed  or 
altered  without  the  consent  of  the  grantee,  as  in  Fletcher  v. 
Peck  and  Dartmouth  College  v.  Woodward.  Those  are  in  no 
degree  parallel  to  the  present  case.  The  plaintiffs  say,  that  tak¬ 
ing  away  their  toll  is  equivalent  to  taking  away  their  grant. 
But  our  act  does  not  prevent  their  receiving  toll.  Making 
a  similar  -grant  is  not  granting  the  same  thing.  Another  class 
relates  to  exclusive  grants  ;  and  to  such  the  remarks  of  Chan¬ 
cellor  Kent  apply,  in  Gibbons  v.  Ogden.  A  third  class  is  where 
the  public  have  made  a  grant  of  a  highway,  and  an  individual, 
without  any  authority  from  the  government,  sets  up  another 
and  diverts  the  custom,  leaving  the  grantee  obliged  to  maintain 
his  highway,  while  he  is  deprived  of  the  benefit  allowed  him  by 
the  government. 

Reliance  has  been  placed  on  a  dictum  in  the  Year  Book  of 
22  H.  6,  that  a  ferry  set  up  near  an  old  one  is  a  nuisance. 
This  was  said  arguendo ,  and  though  it  has  been  repeated  in 
books  since,  it  is  not  sustained  by  the  authorities,  in  the  sense 
in  which  the  plaintiffs  would  have  it  understood.  It  referred  to 
an  interference  by  an  individual  acting  without  authority  from 
the  government.  Willes,  512  ;  Yard  v.  Ford,  2  Saund.  174  ; 

1  Nott  and  M‘Cord,  395  j  3  Murphy’s  N.  Car.  Rep.  57.  The 


93 


case  of  Rex  v.  Butler,  3  Lev.  222,  is  conclusive  on  this  point. 
The  whole  reasoning  there  proceeds  on  the  ground,  that  the 
writ  of  ad  quod  damnum  was  surreptitiously  obtained,  and  so 
the  new  market  was  a  nuisance.  It  has  been  suggested,  that  an 
ad  quod  damnum  is  a  matter  of  form  ;  that  it  is  executed  with¬ 
out  notice.  This  is  a  mistake.  The  English  newspapers  of 
the  present  day  contain  advertisements  in  which  the  sheriff 
gives  notice  that  he  is  about  to  execute  such  a  writ.  Upon  a 
license  granted  alter  a  writ  of  ad  quod  damnum  duly  executed, 
a  man  sets  up  a  market  &c.  with  safety.  Rex  v.  Montague , 
4  B.  &  Cr.  598. 

We  have  no  writ  of  ad  quod  damnum  in  our  practice  ;  but  a 
hearing  before  the  legislature  is  equivalent.  The  report  of  the 
committee  of  the  legislature  in  1792,  negatived  any  exclusive 
right  in  the  plaintiffs,  but  as  a  matter  of  bounty  they  recommend¬ 
ed  an  extension  of  the  time  allowed  them  for  receiving  toll  for 
passing  their  bridge,  and  whatever  may  have  been  the  original 
grant,  it  should  seem  that  this  report  was  intended  to  put  an  end 
to  the  claim  of  an  exclusive  right,  and  the  plaintiffs  must  take 
the  extension  in  the  terms  in  which  it  was  given.  There  has 
been  a  contemporary  and  repeated  construction  of  the  plaintiffs’ 
right,  and  in  which  they  have  acquiesced.  Their  claim  was 
made  before  the  legislature  when  the  West  Boston  and  the  Ca¬ 
nal  bridges  were  granted,  each  of  which  interfered  greatly  with 
their  profits.  The  spur  from  the  Canal  bridge,  it  is  said,  leads 
from  Charlestown  to  Cambridge  ;  but  it  likewise  leads  from 
Charlestown  to  Boston.  An  acquiescence  in  wrong  may  not 
give  a  right ;  but  we  allude  to  the  fact  as  showing  the  general 
understanding  of  the  community. 

There  is  nothing  in  the  English  decisions  that  is  inconsistent 
with  the  practice  of  our  legislature;  and  if  there  was,  they 
could  not  control  the  practice  and  principles  which  have  been 
held  here  from  the  settlement  of  the  country.  The  usage  here 
has  always  been,  to  make  grants  like  the  one  in  question,  with¬ 
out  giving  any  exclusive  right.  The  case  of  Chadwick’s  ferry 
settles  no  point  of  law.  The  legislature  made  provision  for  his 
indemnity,  but  otherwise  it  was  not  a  question  of  right.  In 
some  instances  the  legislature  give  a  privilege  of  taking  shares 


94 


in  the  new  enterprise,  in  others  a  fixed  sum  is  allowed  ;  not  as 
a  matter  of  right,  but  of  discretion.  If  the  doctrine  on  the  oth¬ 
er  side  is  correct,  the  grants  of  most  of  the  bridges  about  Boston 
were  outrages  upon  private  property  ;  in  particular,  the  free 
bridge  to  South  Boston.  The  turnpike  from  West  Boston 
bridge  to  Watertown,  was  of  the  same  character.  The  declar¬ 
ed  design  of  it  was  to  draw  travel  from  the  turnpike  leading 
from  the  Mill-Dam  to  Watertown.  Why  has  there  been  no 
prosecution  before,  unless  from  the  general  understanding  that 
the  legislature  had  a  right  to  make  these  grants  ? 

The  plaintiffs  argue,  that  a  decision  in  our  favour  will  put 
a  stop  to  enterprise.  On  the  contrary,  that  is  the  very  genius 
of  monopoly.  History  shows,  that  monopolies  in  England  be¬ 
came  intolerable,  and  they  were  swept  away  by  the  statute  of 
James.  If  the  system  had  been  practised  on  here,  we  should 
now  have  had  the  old  ferry,  instead  of  the  plaintiffs’  bridge.  A 
new  invention  always  injures  a  previous  one ;  but  improve¬ 
ments  have  gone  steadily  on  in  this  country,  and  we  trust  will 
continue  to  make  advances  under  our  system  of  liberal  compe¬ 
tition. 

Webster  in  reply.  The  question  before  the  Court  is  now'  to  be 
discussed  and  settled  upon  strict  principle  applicable  to  private 
rights.  The  case  is  now  where  reason  is  to  govern,  and  not  de¬ 
clamation.  Legislatures  do  not  act  under  the  same  responsibil¬ 
ity  as  judges.  They  may  determine  by  simple  ayes  and  noes  ; 
but  a  judge  must  give  reasons  for  his  decision.  It  may  not  be 
improper  to  advert  to  general  considerations  of  expediency,  but 
they  cannot  have  very  great  influence.  The  defendants  talk  of 
a  free  course  of  legislation,  of  free  competition,  as  the  source  of 
public  improvements.  They  would  not,  I  trust,  compete  with 
us  for  our  franchise.  But  how  are  public  improvements  pro¬ 
moted  among  us,  except  by  private  funds  advanced  upon  a 
confidence  reposed  in  the  most  delicate  and  strict  observance  of 
public  faith  ?  Nothing  is  done  here  by  the  government  itself, 
but  every  thing  by  individuals,  under  the  sanction  of  the  govern¬ 
ment  ;  and  the  defendants  would  bring  their  liberal  doctrines  in¬ 
to  conflict  with  rights  thus  established.  I  rejoice  in  an  oppor¬ 
tunity  to  resist  the  attempt  to  force  these  popular  notions  upon 
courts  of  justice. 


95 


The  plaintiffs  have  a  bridge,  at  which  they  receive  toll ;  the 
defendants  place  another  bridge  by  the  side  of  it  and  take  two 
thirds  of  the  toll ;  and  the  question  is,  whether  this  is  an  invasion 
of  private  rights.  If  the  new  bridge  is  not  protected  by  the  act 
of  1527,  we  say  it  is  a  nuisance  at  common  law  ;  if  it  is  so  pro¬ 
tected,  then  we  say  that  that  act  is  contrary  to  the  constitutions 
of  this  state  and  of  the  United  States. 

Before  considering  these  great  questions,  it  may  be  well  to 
dispose  of  some  subordinate  collateral  matters. 

The  plaintiffs  must  be  an  existing  corporation  in  order  to  main¬ 
tain  this  suit.  The  defendants  say,  that  the  original  charter  of 
the  plaintiffs  has  expired,  and  that  there  has  been  no  accep¬ 
tance  of  the  extension  allowed  by  the  act  of  1791.  The  objec¬ 
tion  admits  of  several  answers.  First,  if  the  plaintiffs  are  not  a 
corporation,  it  should  have  been  pleaded  in  abatement.  Sec¬ 
ondly,  the  defendants’  own  charter  recognises  the  plaintiffs  as  a 
corporation.  And  thirdly,  the  plaintiffs  have  accepted  the  ex¬ 
tension  of  their  charter.  If  an  act  of  incorporation  is  granted 
to  individuals,  organizing  themselves  under  it  is  an  acceptance 
of  it ;  and  if  an  additional  act  is  passed,  any  thing  done  in  con¬ 
formity  to  it,  which  they  could  not  have  done  without  it,  is  an  ac¬ 
ceptance  of  the  additional  act.  The  plaintiffs  have  continued  to 
act  as  a  corporation ;  which  is  conclusive  evidence  of  such  ac¬ 
ceptance.  But  it  is  said  we  ought  to  have  accepted  sooner. 
What  then  ?  It  may  be  matter  to  be  tried  on  a  quo  ivarranto,  if 
the  commonwealth  see  fit  to  institute  such  process  ;  but  it  does 
not  concern  the  defendants.  Before  the  expiration  of  the  first 
act,  the  second  was  expressly  accepted  by  a  vote  ;  and  why  was 
not  this  in  season  ?  Further,  the  plaintiffs  acted  in  a  manner  irre¬ 
concilable  with  the  non-acceptance  of  the  act,  by  discontinuing 
to  take  the  double  toll.  It  is  objected  however,  that  this  was 
not  until  the  West  Boston  bridge  had  been  built.  Witnesses  in 
speaking  of  a  transaction  which  took  place  more  than  thirty  years 
ago,  would  naturally  refer  to  something  visible  to  fix  the  time  ;  but 
we  believe  that  the  plaintiffs  discontinued  the  double  toll  imme¬ 
diately  after  the  passing  of  the  act,  though  they  did  not  make  the 
entry  of  the  act  on  their  books  till  1802.  Besides,  the  provision 
on  this  subject  was  not  a  condition  precedent.  Grants  which 


96 


are  beneficial  to  a  corporation,  are  presumed  to  be  accepted. 
United  States  Bank  v.  JJandridge ,  12  Wheat.  70.  The  act 
in  question,  so  far  as  the  plaintiffs’  assent  to  it  could  be  of  any 
avail,  was  beneficial  to  them.  If  they  had  had  the  power,  they 
would  have  rejected  the  whole  act ;  but  that  they  could  not  do, 
and  the  extension  of  their  charter  for  thirty  years  was  a  benefit. 

The  defendants  say,  that  the  ferry  was  not  a  ferry  by  prescrip¬ 
tion.  We  have  merely  called  it  an  ancient  ferry.  But  whether 
it  was  by  prescription  or  by  grant,  the  law  in  regard  to  it  is  the 
same. 

It  is  objected  that  the  college  have  never  assented  to  the  act 
of  1791.  They  have  received  the  annuity  provided  for  by  the 
act,  and  this  is  an  assent.  But  their  assent  was  not  necessary. 
Their  whole  right  to  the  ferry  had  been  relinquished  in  1785, 
and  the  question  in  1792  was  between  the  government  and  the 
plaintiffs  only. 

Other  cases  of  questionable  legislation  have  been  enumerated 
on  the  part  of  the  defendants.  It  is  a  very  usual  course  for  a 
man  in  fault,  to  resort  to  similar  instances  for  his  justification. 
There  is  a  natural  alliance  between  bad  principle  and  bad 
practice.  But  the  Court  are  not  told  of  the  ninety-nine  cases 
in  the  hundred,  in  which  the  legislature  have  been  sedulously 
attentive  to  the  preservation  of  private  rights. 

First,  it  is  said  that  if  our  construction  of  our  charter  is  cor¬ 
rect,  the  grant  of  West  Boston  bridge  was  a  flagrant  violation  of 
our  rights.  Suppose  it  was  so;  we  complain  now  of  a  more 
flagrant  violation.  Is  a  former  remote  encroachment  to  justify 
an  immediate  and  direct  encroachment?  Forbearance  in  a 
questionable  case  does  not  affect  the  right.  If  the  legislature 
did  wrong  in  granting  the  West  Boston  bridge,  they  at  the  same 
time  conferred  a  benefit  in  the  extension  of  our  charter,  which 
furnished  a  sufficient  reason  for  our  acquiescence. 

The  counsel  say,  that  in  1792,  a  committee  of  the  legisla¬ 
ture  made  a  report,  which  was  accepted,  giving  the  negative  to 
our  claim  to  an  exclusive  right.  The  report  is  of  no  authority, — 
but  what  does  it  amount  to  ?  That  the  act  of  1784  “  is  not  an 
exclusive  grant  of  the  right  to  build  over  the  waters  of  Charles 
river.”  If  the  plaintiffs  misconceived  their  rights,  it  does  not 


97 


follow  that  they  have  no  rights.  We  do  not  now  set  up  the  claim 
which  was  made  in  1792  ;  our  present  claim  and  the  report  may 
well  stand  together. 

The  erection  of  Canal  bridge  too,  it  is  said,  was,  according  to 
our  principles,  a  violation  of  our  rights,  and  yet  we  did  not  re¬ 
sist.  Possibly  the  proprietors  of  Charles  river  bridge  thought 
the  interference  was  rather  with  West  Boston  bridge  ;  and 
the  division  between  that  bridge  and  Canal  bridge,  of  the  burden 
of  the  college  annuity,  favours  the  idea.  It  is  however  sufficient 
to  remark,  that  if  in  a  doubtful  case  the  plaintiffs  did  not  think  it 
would  be  advantageous  for  them  to  contend,  it  does  not  con¬ 
clude  them  in  the  present  case. 

In  regard  to  Malden  bridge,  the  Penny  ferry  seems  to  have 
belonged  to  the  town  of  Charlestown,  and  the  inhabitants  may 
have  considered  that  their  interest  would  be  advanced  by  hav¬ 
ing  it  superseded  by  the  bridge.  And  when  this  bridge  was 
afterward  injured  by  the  grant  of  Chelsea  bridge,  it  was  provid¬ 
ed  in  the  act,  upon  the  agreement  of  the  parties,  that  a  portion 
of  the  profits  of  Chelsea  bridge  should  be  paid  to  the  proprie¬ 
tors  of  Malden  bridge.  But  it  is  objected  that  no  compensa¬ 
tion  was  made  to  the  owner  of  Winnesimet  ferry  for  the  dam¬ 
age  occasioned  by  Chelsea  bridge.  It  may  be  remarked  in  an¬ 
swer,  that  the  bridge  was  between  Chelsea  and  Charlestown, 
and  the  ferry  was  over  an  arm  of  the  sea  from  Chelsea  to  a 
third  town  at  a  considerable  distance  from  the  bridge. 

In  the  case  of  the  free  bridge  to  South  Boston  there  was  no 
memorial  in  behalf  of  the  proprietors  of  the  old  South  Boston 
bridge,  and  a  majority  in  interest  were  in  favour  of  the  erection 
of  the  new  bridge. 

The  two  turnpike  roads  from  Watertown  to  the  Mill-dam  and 
West  Boston  bridge,  were  both  granted  in  the  same  year, 
and  it  was  a  race  between  the  parties,  which  should  get  a  road 
first. 

But  none  of  these  instances  furnish  authority  for  a  court  of 
law. 

Much  has  been  said  about  odious  monopolies.  Is  a  bridge, 
a  ferry,  a  fair,  or  a  market,  a  monopoly  ?  The  statute  of  James 
has  not  swept  them  away.  A  monopoly  is  a  grant  of  a  benefit 

13 


98 


without  any  burden.  Joiner  says,  that  a  ferry  or  a  bridge  is  not 
a  monopoly,  because  there  is  a  duty  to  be  performed  by  the 
proprietor.  Doubtless  our  predecessors,  the  Indians,  had  the 
perfect  freedom  of  competition  which  the  defendants  now  want 
to  introduce ;  but  they  had  no  bridges,  no  ferries.  All  the 
public  improvements  in  the  country  have  arisen  from  what  the 
defendants  call  monopoly  ;  from  a  grant  by  the  public,  of 
security  for  private  funds,  for  the  benefit  of  using  them.  We 
are  asked  if  our  ancestors  would  have  granted  to  the  college  a 
right  over  the  whole  river.  Undoubtedly  they  would  ;  and  if 
they  had  foreseen  the  increase  of  population  in  the  vicinity, 
with  their  anxious  desire  to  encourage  learning,  they  would  have 
done  it  the  more  willingly. 

We  come  now  to  the  consideration  of  the  real  questions  in 
the  case. 

The  first  question  is,  whether  the  college  had  any  ferry-right 
in  1785  ; — whether  by  one  or  all  of  the  previous  grants,  or  by 
usage  only  is  immaterial. 

A  ferry  having  been  previously  established  between  Boston 
and  Charlestown,  in  1640  the  general  court  say,  “the  ferry  be¬ 
tween  Boston  and  Charlestown  is  granted  to  the  college.” 
These  words  would  be  sufficient  now  to  pass  a  ferry  ;  and  at 
that  period,  it  was  not  usual  to  be  more  full  and  formal  in 
making  grants.  A  ferry  will  pass  by  any  words  which  show 
such  an  intent.  1  Nott  &  M‘Cord,  3(J3.  The  defendants  say 
that  this  was  a  gratuity  to  the  college.  It  may  have  been  a 
gratuity,  but  it  was  not  revocable.  A  gift  executed  is  beyond  the 
power  of  the  legislature.  This  grant  has  been  recognised  by 
the  government  in  1650,  1654,  1710,  171.2,  1781,  and  1785. 
The  act  of  17S1  ( St .  1780,  c.  42,)  regulating  the  ferry,  im¬ 
poses  a  heavy  penalty  on  the  college  in  case  of  negligence ; 
and  yet  the  defendants  say  the  college  were  Subject  to  no  bur¬ 
den.  The  statute  proceeds  upon  the  ground,  that  the  college 
were  liable  to  indictment,  if  the  ferry  were  not  properly  kept. 
The  power  of  even  regulating  the  tolls  is  recognised  by  that 
statute  to  be  in  the  college  ;  and  yet  it  is  said  they  had  no  fran¬ 
chise.  In  St.  17S4,  c.  53,  §  5,  “  a  reasonable  and  annual  com¬ 
pensation  for  the  annual  income  of  the  ferry  ”  is  saved  to  the 


99 


college,  after  the  bridge  shall  become  the  properly  of  the  com¬ 
monwealth.  Is  this  a  gratuity,  or  is  it  an  express  acknowledge¬ 
ment  of  a  pre-existing  right,  and  a  compensation  for  the  relin¬ 
quishment  of  that  right?  All  these  acts  are  confirmations  of 
the  grant,  and  yet  it  is  argued,  that  they  prove  that  the  college 
had  no  right  at  all.  As  well  may  it  be  contended,  that  the  seve¬ 
ral  ratifications  of  magna  charta  abrogated  it. 

It  has  been  objected,  that  the  college  could  not  take  under 
the  grant,  not  being  a  corporation  until  1650.  That  may  have 
been  the  reason  then  why  a  confirmation  was  made. 

It  is  urged  that  the  government  have  constantly  interfered  in 
regard  to  the  ferry.  But  they  took  none  of  the  revenue,  nor 
ever  resumed  the  franchise  ;  all  their  acts  were  merely  regula¬ 
tion. 

The  defendants  distinguished  between  a  grant  of  the  fran¬ 
chise  and  of  the  profits  and  revenues.  But  the  distinction  does 
not  aid  them.  All  that  the  government  could  grant  to  an  in¬ 
dividual  was  the  benefit.  There  is  nothing  beneficial  in  a  ferry 
except  the  tolls,  the  revenue  ;  and  a  grant  of  the  revenue  carries 
with  it  an  obligation  to  support  the  ferry.  The  government  did 
not  sustain  this  ferry  ;  they  built  no  boats,  they  merely  regulated 
them  ;  they  derived  no  profit  from  the  tolls.  The  actual  man¬ 
agement  and  revenue  have  always  been  with  the  college.  If 
using  the  whole  franchise  for  a  hundred  and  forty  years,  does 
not  give  a  title,  it  will  be  difficult  to  know  who  in  this  country 
has  a  title. 

Next,  what  is  the  extent  of  the  ferry  or  franchise,  up  and 
down  the  river  ?  It  is  sufficient  for  us  to  show  that  it  is  broad 
enough  to  cover  the  place  where  the  defendants  have  built  their 
bridge,  and  that  so  the  bridge  would  have  been  a  nuisance  to 
the  ferry. 

The  grant  was  of  a  ferry  between  Boston  and  Charlestown  ; 
and  this  in  legal  contemplation  takes  the  whole  of  the  two  ter¬ 
mini.  It  covers  the  whole  water  between  these  two  towns. 
Suppose  that  no  ferry  or  bridge  had  subsisted  between  these 
towns,  and  an  individual  should  to-day  purchase  of  the  govern¬ 
ment  “  the  ferry  between  Boston  and  Charlestown  ;  ”  how  would 
the  grant  be  interpreted  ?  It  must  either  include  the  whole  wa- 


100 


ter  between  Boston  and  Charlestown,  or  it  has  no  limits.  Would 
the  Court  hold  that  the  same  prerogative  could  to-morrow  grant 
another  ferry  by  the  side  of  it  ?  The  case  is  analogous  to  that 
of  a  market.  If  a  market  is  set  up  too  near  an  ancient  market 
on  the  same  day ,  it  is  by  intendment  of  law  a  nuisance,  but  if 
on  another  day,  whether  nuisance  or  not  is  a  question  of  evi¬ 
dence.  So  a  ferry  established  between  the  same  termini,  is  by 
intendment  of  law  a  nuisance. 

It  is  clear  law,  that  it  is  a  nuisance  to  set  up  a  ferry  so  near 
another  as  to  draw  away  the  toll.  This  doctrine,  the  defen¬ 
dants  say,  is  traced  to  a  single  dictum  in  the  Year  Books.  That 
would  only  prove  that  it  was  too  plain  to  admit  of  dispute.  But 
it  rests  on  other  authority.  The  case  in  Hardres,  as  reversed  by 
Hale,  acknowledges  the  law  as  above  stated  ;  and  it  is  recog¬ 
nised  by  Brooke,  Rolle,  Cornyn,  Blackstone,  Kent,  and  the  court 
in  South  Carolina. 

Where  a  thing  is  granted,  all  that  is  necessary  to  the  enjoy¬ 
ment  of  it  goes  with  it.  If  an  office  is  granted  by  name,  all 
the  powers,  duties  and  fees  belonging  to  it  pass.  So  of  a  ferry. 
If  an  individual  grants  a  ferry,  all  his  rights  accompany  it ;  and 
it  is  settled,  that  the  right  of  a  ferry,  in  local  extent,  is  exclusive, 
so  far  as  to  put  down  injurious  competition.  How  does  the 
grant  to  the  college  in  1640  carry  the  beneficial  part,  the  tolls? 
They  are  not  mentioned  in  the  grant ;  but  it  has  not  been  pre¬ 
tended  that  the  college  took  only  the  privilege  to  row  and  scull. 
The  law  says,  that  the  right  to  toll  goes  with  the  ferry  by  im¬ 
plication  ;  but  it  says  so  no  more  than  it  does,  that  in  like  man¬ 
ner  passes  the  right  to  put  down  injurious  competition.  Both 
are  equally  incidents  to  a  ferry.  The  profits  of  this  ferry  were 
originally  407. ;  why  is  it  not  contended  that  the  government 
might  have  taken  all  the  excess  afterwards,  on  the  ground  that 
they  did  not  intend  to  give  more  than  that  sum  ?  If  they  may 
take  back  a  part  of  what  is  granted  by  implication  only,  they 
may  the  whole. 

The  defendants  however  contend,  that  it  can  be  made  out  by 
authority,  that  the  ferry  is  limited  to  the  landing-places,  and  a 
case  in  Saville  is  referred  to  as  overturning  the  doctrine  of  Kent 
and  others  before  named.  The  question  there  was,  whether  the 


101 


owner  of  a  ferry  had  any  right  to  the  water,  except  to  navigate 
it.  We  contend  for  no  other  right.  “  A  ferry  is  in  respect  to 
the  landing-places,”  means  only  that  there  must  be  a  place  to 
land.  Com.  Dig.  Piscary  B. 

The  grant  in  1640  was  not  of  a  ferry  de  novo,  but  of  a  fran¬ 
chise  already  in  exercise.  What  were  its  rights  at  that  time  ? 
History  shows  that  it  was  the  sole  ferry  between  Boston  and 
Charlestown,  and  that  it  was  in  the  hands  of  a  lessee  of  the  gov¬ 
ernment  at  a  rent  of  40 1.  a  year.  Could  the  government  have 
granted  another  ferry  between  these  towns,  to  be  used  before 
the  lease  to  Converse  had  expired  ?  The  lease  gave  him  “  the 
ferry  between  Boston  and  Charlestown,  to  have  the  sole  trans¬ 
porting  of  passengers  and  cattle  from  one  side  to  the  other.” 

If  this  were  doubtful,  are  we  to  forget  that  there  has  been  a 
long  continued  usage  showing  the  extent  of  the  grant  ?  No  rival 
ferry  was  attempted  to  be  set  up  during  the  space  of  145  years. 
In  Blankley  v.  Winstanley ,  3  T.  R.  279,  a  usage  under  a  charter 
is  considered  as  the  true  exposition  of  the  extent  of  the  charter,  and 
it  is  there  held  to  override  a  by-law.  In  1 785,  the  college,  if  they 
had  not  assented  to  the  erection  of  Charles  river  bridge,  might 
have  sued  the  plaintiffs,  and  their  charter  would  not  have  protect¬ 
ed  them.  Chadwick  v.  Haverhill  Bridge,  2  Dane’s  Abr.  686. 
In  Tripp  v.  Frank,  4  T.  R.  668,  it  is  conceded,  that  if  it  had 
been  the  duty  of  the  plaintiffs  to  transport  all  passengers  from 
Kingston  upon  Hull,  to  Barrow,  as  well  as  to  Barton,  they  would 
have  been  entitled  to  all  the  tolls.  So  here,  we  are  obliged  to 
transport  all  passengers  between  Boston  and  Charlestown,  the 
termini  of  our  ferry,  and  our  rights  are  commensurate  with  our 
duties. 

Next ;  if  the  college  had,  in  1785,  the  right  of  the  ferry  to 
the  extent  above  claimed,  we  are  to  consider  what  was  the  char¬ 
acter  of  the  transaction  which  took  place  in  that  year.  It  is  en¬ 
titled  to  receive  a  reasonable  construction  ;  such  as  will  protect 
the  parties  to  it,  and  carry  their  intent  into  effect. 

The  petitioners  for  a  bridge  could  not  erect  one  without  the 
consent  of  the  college,  as  it  faould  have  been  a  nuisance  to  the 
ferry  ;  the  college  had  no  authority  to  build  one  to  the  obstruc¬ 
tion  of  the  navigable  waters,  as  it  would  have  been  a  usurpation 


102 


against  the  government,  and  the  government  had  not  the  power 
to  take  away  the  ferry-tolls  from  the  college.  There  were  three 
parties  then,  neither  of  which  could  alone  erect  the  bridge.  The 
petitioners  therefore  were  obliged  to  obtain  from  the  government 
a  license  to  obstruct  the  navigable  waters,  and  from  the  college, 
a  right  to  take  the  toll.  Under  these  circumstances  the  act  of 
1784  was  passed.  The  college  were  a  party  to  the  act;  that 
is,  they  assented  to  it.  A  subsequent  ratification  implies  a  pre¬ 
vious  assent.  It  was  not  necessary  that  they  should  be  named 
as  a  party  in  the  act  itself.  They  stop  their  ferry-boats,  and  ac¬ 
cept  of  the  annuity  provided  for  them  by  way  of  compensation. 
This  was  a  ratification,  and  in  connexion  with  the  act,  was  a 
conveyance  of  their  right  in  the  franchise,  to  the  plaintiffs  for 
the  term  of  forty  years,  and  to  the  government  ever  afterwards. 
The  conveyance  was  founded  on  a  consideration,  in  respect 
both  to  the  college  and  the  commonwealth  ;  an  annuity  being 
granted  to  the  one,  and  a  public  benefit  conferred  on  the  oth¬ 
er,  at  the  plaintiffs’  expense.  It  has  been  said  that  the  annuity 
was  payable  out  of  the  tolls,  and  so  the  consideration  proceeded 
from  the  public.  On  the  contrary,  the  act  makes  it  an  abso¬ 
lute  charge  on  the  plaintiffs,  and  it  must  be  paid  even  if  their 
bridge  should  in  any  way  be  destroyed  or  rendered  unproduc¬ 
tive.  We  admit  that  there  is  no  assignment  in  the  forms  of  the 
common  law  ;  but  the  transaction  is  not  to  be  looked  at  in  a 
technical  view  ;  the  intent  of  the  parties  is  to  be  regarded.  It 
is  a  case  of  substitution  of  one  person  to  another  as  owner  of  the 
ferry,  through  an  act  of  the  legislature,  which  is  binding  on  all 
persons  who  assent  to  it.  The  transaction  may  be  considered 
as  a  purchase  and  surrender  of  the  ferry  to  the  use  of  the  plain¬ 
tiffs  for  forty  years,  with  a  reversion  to  the  government,  the 
plaintiffs  paying  the  college  an  annuity  of  200/.  during  the  term, 
and  the  government  making  a  reasonable  compensation  after¬ 
ward  for  what  would  have  been  the  income  of  the  ferry. 

The  case  in  Palmer,  78,  is  in  point.  If  the  legislature  had 
said,  ‘  whereas  the  college  have  a  ferry,  now  leave  is  granted  to 
them  to  build  a  bridge,’  the  bridge  would  have  the  same  extent 
of  right  as  the  ferry.  It  would  be  merely  substituting  one  mode 
of  transportation  for  another  ;  like  sail-boats  for  row-boats.  So 


103 


that  the  plaintiffs,  holding  the  right  of  the  college,  have  the 
same  extent  of  franchise,  as  if  the  college  had  been  authorized 
to  substitute  a  bridge  for  their  ferry. 

But  we  need  not  rely  on  the  ground  of  a  transfer  of  the  ferry. 
We  stand  upon  a  grant  from  the  legislature;  and  if  necessary, 
the  Court  will  refer  to  the  ferry,  or  suppose  that  our  charter  re¬ 
fers  to  it,  as  descriptive  of  the  extent  of  the  grant. 

We  say  that  the  recent  act,  incorporating  the  proprietors  of 
Warren  bridge,  impairs  the  rights  vested  in  us  by  our  charter. 
Our  property  is  taken  from  us,  without  any  suitable  provision  for 
compensation. 

It  is  unnecessary  to  argue  that  an  act  of  the  legislature,  im¬ 
pairing  the  obligation  of  a  contract,  is  unconstitutional ;  or  that  a 
grant  is  a  contract.  The  whole  ground  is  covered  by  the  cases 
of  Vanhorne's  Lessee  v.  Dorrance,  Fletcher  v.  Peck,  New  Jer¬ 
sey  v.  Wilson  and  Dartmouth  College  v.  Woodward.  This 
last  was  the  case  of  a  charily  for  public  objects,  and  it  was  argu¬ 
ed  that  the  government  might  therefore  control  it ;  but  the  an¬ 
swer  was,  that  the  plaintiffs  were  a  private  corporation,  though 
for  the  benefit  of  the  public.  The  franchise  now  in  question  is 
granted  to  a  private  civil  corporation  ;  not  to  a  public  corporation 
over  which  the  legislature  have  a  control.  In  4  Wheat.  669, 
in  speaking  of  canal,  bridge  and  turnpike  corporations,  Story  J. 
says,  “  In  all  these  cases,  the  uses  may,  in  a  certain  sense,  be 
called  public,  but  the  corporations  are  private  ;  as  much  so  in¬ 
deed  as  if  the  franchises  were  vested  in  a  single  person.”  Any 
notion,  therefore,  which  may  be  entertained,  that  the  grant  of  our 
bridge  is  connected  with  the  public  benefit,  is  of  no  consequence. 
The  question  concerns  a  franchise.  We  contend  that  the  late 
act  is  a  resumption  of  a  part  of  a  franchise,  and  all  argument 
about  a  free  course  of  legislation  is  irrelevant ;  it  is  a  question 
of  right. 

The  same  rule  of  construction  prevails  in  a  question  between 
the  government  and  their  grantee,  as  between  individuals.  In  a 
case  of  contract,  they  stand  on  equal  ground.  The  rule  as  to 
grants  of  the  crown  being  construed  in  favour  of  the  crown,  is 
explained  in  the  Dartmouth  College  case.  If  on  the  solicitation 
of  a  party,  a  grant  is  made  injurious  to  the  crown,  it  is  consid- 


104 


ered  that  the  king  was  deceived  ;  and  hence  the  practice  of  in¬ 
serting  the  words  mero  motu  in  crown  grants,  in  order  to  entitle 
the  grantee  to  a  more  liberal  construction.  But  the  application 
of  the  rule  to  parliamentary  grants,  was  questioned  by  Eyre  C.  J. 
in  Boulton  v.  Bull ,  2  H.  Bl.  500.  Ours  is  a  grant  of  that 
sort.  And  besides,  the  English  rule  was  never  adopted  in  this 
commonwealth. 

The  plaintiffs  being  a  private  corporation,  from  the  nature  of 
the  case,  our  grant  must  be  exclusive  to  some  extent ;  and  this  is 
a  question  of  construction.  The  charter  allows  the  erection  of  a 
bridge  “  in  the  place  where  the  ferry  between  Boston  and 
Charlestown  is  now  kept.”  The  plain  implication  is,  that  the 
bridge  was  to  be  a  substitute  for  the  ferry.  Had  the  words  been 
“  in  place  of,”  that  is,  expressly  as  a  substitute,  they  would  not 
have  been  stronger.  “  Where  the  ferry  is  kept,”  is  descriptive 
of  the  franchise.  It  is  immaterial  whether  we  do  or  do  not 
make  out  a  privity  between  the  proprietors  of  the  ferry  and  those 
of  the  bridge.  Without  such  privity,  the  act  authorizing  the  erec¬ 
tion  of  a  bridge  in  the  place  where  a  ferry  is  kept,  gives  the 
same  local  extent.  Our  grant  either  has  no  extent  beyond  the 
width  of  our  bridge,  or  it  has  the  common  law  extent,  of  keeping 
down  injurious  competition,  or  it  has  the  same  extent  as  the  old 
ferry.  If  we  can  go  a  single  foot  beyond  our  planks,  there  can 
be  no  question  in  this  case.  All  the  arguments  showing  that  a  fer¬ 
ry  generally,  or  this  one  in  particular,  is  exclusive  to  a  certain  ex¬ 
tent,  apply  equally  to  the  bridge,  indeed  with  greater  force,  be¬ 
cause  a  greater  outlay  of  capital  was  necessary  in  the  case  of  the 
bridge,  and  greater  risk  was  incurred. 

Assuming,  what  seems  to  be  admitted,  that  if  the  defendants 
were  acting  merely  as  individuals,  without  any  license  from  the 
legislature,  they  would  be  liable  to  us  in  an  action  for  a  nuisance, 
(and  yet  if  we  cannot  go  beyond  the  length  of  our  planks,  it 
should  seem  to  be  doubtful,)  the  question  is,  whether  the  legis¬ 
lature  could  authorize  them  to  build  their  bridge.  In  our  view, 
if  an  action  would  have  lain,  it  is  impossible  to  maintain  that  an 
act  of  the  legislature  can  protect  the  defendants.  By  no  con¬ 
struction  can  it  take  from  the  plaintiffs  any  right  which  they 
could  before  have  enforced. 


105 


It  is  admitted  that  this  franchise  is  private  property,  and  that 
the  Warren  bridge  takes  two  thirds  of  our  income.  The  whole 
effect  of  the  recent  act  is  to  take  the  fruits  and  profits  of  the 
franchise  ;  for  it  is  clear,  that  it  does  not  resume  the  license  to 
obstruct  navigation.  It.  is  a  mere  question  of  money  between 
the  treasurer  of  the  commonwealth,  and  the  proprietors  of 
Charles  river  bridge.  As  soon  as  the  proprietors  of  the  War¬ 
ren  bridge  shall  be  reimbursed  their  expenses,  the  tolls  received 
at  that  bridge  go  to  the  government.  The  legislature  put  their 
hands  into  our  toll-dish  and  take  the  lion’s  part.  They  in  effect 
say,  this  is  a  day  of  free  competition,  and  we  will  enter  into 
competition  with  you  for  the  money  in  your  till.  If  there  were 
no  constitution,  such  an  act  could  have  no  force. 

The  legislature  cannot  grant  what  they  do  not  possess.  The 
confusion  in  this  case  arises  from  considering  these  acts  of  the 
legislature  as  laws ;  whereas  they  are  grants,  which  are  wholly 
different.  A  law  is  a  rule  prescribed  for  the  government  of  the 
subject ;  a  grant  is  a  donation.  In  laws,  the  last  in  order  of 
time  repeals  the  first;  in  grants,  the  first  stands  unaffected  by 
the  last.  Every  grant  supposes  that  the  grantor  has  parted 
with  his  right,  and  that  he  will  not  re-assert  it.  The  question 
then  is,  whether  the  defendants  are  protected  by  their  act  of  in¬ 
corporation  in  doing  what  they  have  done  ;  if  they  are  not,  their 
bridge  may  be  abated.  We  say  that  a  right  to  build  and  main¬ 
tain  a  bridge  for  the  time  stated,  with  a  right  to  keep  down 
contiguous  and  injurious  competition,  has  been  granted  to  us  ; 
and  if  the  legislature  meant  to  grant  to  the  defendants  a  fran¬ 
chise  within  those  limits,  they  have  attempted  to  grant  what 
they  had  before  granted  to  us.  If  our  franchise  does  not  ex¬ 
tend  above  the  supposed  franchise  of  the  defendants,  we  have 
no  ground  of  complaint.  The  case  of  Jackson  v.  Catlin,  2 
Johns.  R.  248  and  8  Johns.  R.  406,  establishes  the  principle, 
that  the  terms  used  in  a  legislative  grant,  must,  as  in  other 
grants,  be  construed  with  reference  to  the  power  of  the  grantor, 
and  must  be  considered  as  not  granting  what  the  legislature  had 
not  to  grant. 

But  it  is  said  that  in  England,  after  a  writ  of  ad  quod  dam¬ 
num  executed,  a  grant  of  a  second  market  &c.  will  be  valid, 

14 


106 


and  that  as  we  have  no  such  process,  a  second  grant  without 
such  a  writ  will  be  sustained.  [C.  J.  Or  rather,  that  the  course 
of  proceedings  before  our  legislature  is  equivalent  to  an  ad 
quod  damnum .]  An  ad  quod  damnum  is  a  judicial  process,  by 
which  inquiry  is  made  upon  the  oath  of  honest  and  lawful  men, 
whether  setting  up  a  market  &c.  will  be  to  the  damage  of  the 
king  or  others,  and  if  to  the  damage,  then  to  what  damage. 
There  is  nothing  of  this  sort  before  a  committee  of  the  legisla¬ 
ture.  By  the  constitution,  the  legislature  cannot  exercise  judicial 
pow  ers.  We  have  a  better  protection.  The  jury  is  our  ad  quod 
damnum.  We  have  usually  in  our  acts  a  provision  for  indem¬ 
nity  to  persons  injured,  and  for  a  trial  by  jury  :  and  this  is  the 
course  now  generally  pursued  in  England.  It  has  been  decided, 
that  a  legislative  act  appropriating  private  property  to  public  uses, 
is  void,  unless  it  contains  a  provision  for  a  simultaneous  compen¬ 
sation.  This  Court  have  preceded,  and  the  court  in  New  York 
have  followed,  in  establishing  this  principle  ;  and  the  reason  is, 
that  there  is  no  security  in  legislative  justice,  but  by  holding  such 
acts  to  be  void.  The  inquiry  by  the  legislature,  the  supposed  ad 
quod  damnum  which  is  to  settle  our  right,  is  by  the  party  who  are 
to  derive  a  benefit  from  stripping  us  of  our  rights.  The  legislature 
cannot  go  further  than  to  say,  that  a  measure  will  be  of  public  con¬ 
venience  and  necessity  ;  if  they  are  to  determine  that  it  will  not 
prejudice  private  rights,  and  such  decision  is  to  be  conclusive, 
the  provision  in  the  constitution  is  nugatory  and  inoperative. 

But  the  counsel  mistake  in  regard  to  the  English  law  of  ad 
quod  damnum.  A  grant  after  the  execution  of  such  a  writ,  is 
not  conclusive  of  the  right  of  the  grantee.  Mosley  v.  Walker, 
7  Barnw.  &  Cresw.  41,  and  Mosley  v.  Chadwick,  ibid.  47, 
note  ;  Hale  De  Portibus  Maris,  in  Hargr.  Tr.  59.  But  it  is 
proper  that  such  writ  should  be  issued,  in  order  that  the  king 
may  not  act  without  apparent  reason.  He  would  not  intention¬ 
ally  grant  what  does  not  belong  to  him,  and  thereby  put  the  true 
proprietor  to  his  action.  But  the  doctrine  is  made  clear  by  the 
provision  for  a  scire  facias,  at  the  suit  of  the  party,  to  repeal  the 
second  patent,  where  the  same  thing  has  been  granted  to  two 
patentees.  If  a  scire  facias  will  be  issued  in  such  case,  a  for¬ 
tiori  will  an  action  lie  while  the  second  patent  remains  unre¬ 
pealed. 


107 


But  however  this  may  be,  it  is  plain,  that  the  legislature  of 
Massachusetts  cannot  make  a  grant  which  shall  be  conclusive  of 
the  right  of  the  grantee.  By  the  constitution,  on  a  question  of 
property,  every  subject  has  a  right  to  a  trial  by  jury ;  and  if  so, 
how  can  a  hearing  before  a  committee  of  the  legislature  be 
supposed  to  be  conclusive  ?  The  defendants  say,  that  our 
property  has  not  been  taken  ;  that  what  we  call  property,  is  not 
property.  We  have  a  right  to  a  judicial  trial  of  that  question. 

Then  is  property  taken  by  the  government  from  the  plain¬ 
tiffs  by  the  late  act?  The  constitution  does  not  say  land,  or 
real  estate,  or  personal  estate,  but  it  uses  the  most  general  word, 
property.  Is  a  franchise  property  ?  The  sum  of  20,000  dol¬ 
lars  a  year  is  taken  from  the  plaintiffs.  Is  this  property  ?  If 
the  defendants  had  taken  this  without  a  license  from  the  legisla¬ 
ture,  it  is  admitted  that  we  should  have  had  a  right  of  action  ; 
and  for  what  ?  for  property.  It  is  said  on  the  other  side,  that 
our  property  is  not  taken,  but  that  our  complaint  arises  from  a 
justifiable  use  of  the  public’s  property,  and  that  our  loss  is  dam¬ 
num  absque  injuria.  Not  so.  Suppose  our  franchise,  to  the 
extent  which  we  claim,  had  been  limited  by  monuments  on  the 
banks  of  the  river,  and  the  legislature,  reciting  a  public  exigen¬ 
cy  for  another  bridge,  should  thereupon  authorize  a  bridge 
within  those  limits ;  would  it  not  be  appropriating  our  franchise 
in  whole  or  in  part  ?  And  if  so,  it  is  an  appropriation  of  property. 
They  take  our  franchise,  and  the  proceeds  of  our  franchise. 
Both  are  property.  The  franchise  may  descend  or  be  convey¬ 
ed,  and  in  other  respects  has  the  incidents  of  property.  The 
provision  in  the  constitution  as  to  taking  private  property  for 
public  use,  is  to  be  construed  liberally,  or  at  least  fairly  for  the 
subject.  Our  franchise  is  clearly  taken  by  the  recent  act.  Is 
it  not  appropriated  to  the  public  use  ?  If  not,  the  legislature 
had  no  right  to  take  it  at  all. 

But  further,  we  contend  that  the  power  of  the  legislature  to 
pass  such  an  act  as  the  one  in  question,  is  taken  away  by  the 
constitution  of  the  United  States. 

A  grant  is  admitted  to  be  a  contract.  The  defendants  say 
our  charter  is  a  mere  license  to  build  a  bridge.  Be  it  so  ;  a  li¬ 
cense  is  a  contract.  Our  grant  or  license  is  for  a  valuable  con- 


108 


sideration  ;  for  services  to  be  rendered.  It  operates  as  a  cove¬ 
nant  for  quiet  enjoyment. 

As  the  legislature  could  not  make  a  grant  inconsistent  with  a 
previous  grant,  the  defendants  must  say,  either  that  our  franchise 
does  not  extend  beyond  the  planks  of  our  bridge,  or  that  the 
legislature  retained  a  tacit  right  to  resume  their  grant.  There 
is  no  evidence  of  such  a  reservation.  Suppose  our  limits  up  and 
down  the  river  had  been  defined  ;  could  the  legislature,  upon 
any  tacit  reservation  or  supposed  public  exigency  have  granted 
other  bridges  within  those  limits  ?  It  will  not  be  asserted.  And 
yet  in  fact  such  limits  are  fixed.  The  words  of  the  grant,  by 
necessary  implication,  limit  the  distance  to  which  our  franchise 
shall  reach  ;  and  if  not,  the  law  settles  the  extent.  If  the  tolls 
of  a  ferry  or  bridge  are  not  fixed  by  the  grant,  the  grantee  may 
take  reasonable  tolls.  So  there  must  be  a  reasonable  construc¬ 
tion  as  to  the  extent  of  the  franchise.  The  law  says,  a  rival  fer¬ 
ry  or  bridge  shall  not  be  set  up  so  near  as  to  take  away  the  cus¬ 
tom.  And  this  too  is  to  be  construed  reasonably.  If  we  have 
any  exclusive  right  beyond  our  planks,  it  must  cover  the  place 
where  the  new  bridge  is  erected.  The  direct  and  necessary  ef¬ 
fect  of  the  new  bridge  is  to  take  away  our  custom,  construing 
these  terms  most  favourably  for  the  defendants. 

There  would  be  more  reason  to  contend,  as  a  matter  of  public 
necessity,  that  our  bridge  should  be  removed  as  obstructing  nav¬ 
igation,  than  that  our  money  should  be  taken.  But  whatever 
might  be  the  plea  of  necessity  in  that  case,  the  right  of  navigation, 
the  -peculiar  right  of  the  government,  is  not  resumed  ;  while  our 
money,  the  fruits  of  our  franchise,  which  could  in  no  way  be 
affected  by  the  public  exigences,  is  taken  from  us.  It  is  said  our 
doctrine  would  obstruct  public  improvements.  That  we  deny. 
If  another  bridge  was  wanted,  it  might  have  been  had,  without  in¬ 
volving  the  necessity  of  taking  away  our  revenue.  The  govern¬ 
ment  might  have  built  it  at  our  expense,  and  let  us  take  the  tolls. 

The  question  of  public  necessity  requiring  another  bridge, 
is  not  now  open.  \Ve  deny  the  fact,  and  we  deny  the  compe¬ 
tency  of  this  Court  to  try  the  question  of  convenience,  or  the 
effect  of  it,  if  proved.  Public  necessity  is  apt  to  be  public  feel¬ 
ing,  and  on  this  rock  we  are  in  danger  of  making  shipwreck  of 


109 


the  bill  of  rights.  In  Martin  v.  Commonwealth ,  1  Mass.  R. 
357,  Parsons  says,  that  prerogative  is  more  dangerous  in  a  pop¬ 
ular  government  than  in  a  monarchy  ;  that  in  England,  it  is  the 
cause  of  one  against  the  whole,  here  it  is  the  cause  of  all  against 
one  ;  and  therefore  here  it  is  of  more  importance  that  judicial 
courts  should  watch  the  claim  of  prerogative  more  strictly.  In 
JVeivburgh  Turnpike  Co.  v.  Miller ,  5  Johns.  Ch.  R.  109, 
which  was  the  case  of  a  turnpike  road,  Chancellor  Kent  lays 
out  of  view  all  considerations  of  public  convenience  or  necessity, 
“  as  altogether  inapplicable  to  the  question  of  right.”  In  Mosley 
v.  Walker ,  7  Barnw.  Si  Cresw.  52,  Lord  Tenterden  says,  “  If 
the  ancient  market  has  been  held  in  the  public  street,  can  we  say 
that  because  population  and  commerce  have  increased,  and  that 
a  greater  number  of  carriages  pass  through  the  street  in  modern 
times  than  passed  in  ancient  times,  the  lord,  therefore,  is  to  lose 
his  franchise?  ”  We  take  private  property  for  public  use  more 
freely  in  this  country  than  would  be  tolerated  in  England.  We 
take  it  even  for  speculation. 

In  regard  to  the  compensation  provided  for  in  the  act  of  1827, 
it  is  to  be  made  to  any  person  or  corporation  whose  real  estate 
shall  be  taken  by  the  defendants.  The  word  property ,  which 
is  the  constitutional  word,  is  said  to  have  been  excluded  ex  in- 
dustria  ;  at  any  rate,  it  is  not  in  the  statute.  On  examining  the 
precedents  of  private  acts  in  England,  in  similar  cases,  it  will  be 
found,  that  in  regard  to  indemnity  to  persons  whose  rights  are 
affected,  they  embrace  every  species  of  interest. 

But  it  is  contended  on  the  other  side,  that  the  legislature 
have  not  taken  away  any  right  belonging  to  us.  On  what  ground 
then  do  they  require  the  Warren  bridge  to  pay  half  of  the  annu¬ 
ity  to  the  college  ?  Why  make  those  proprietors  pay  our  debts, 
if  they  have  not  taken  our  property  ?  It  would  be  difficult  to 
find  in  the  history  of  our  legislation  an  act  like  this.  The  legisla¬ 
ture  acknowledge,  on  the  face  of  the  act,  that  our  right  is  taken, 
and  they  undertake  to  debar  us  from  a  trial  by  jury,  and  to 
judge  themselves  of  the  compensation  to  be  made  to  us.  They 
direct  the  annual  sum  of  100?.  to  be  paid  for  us,  and  they  take 
from-  us  the  annual  sum  of  20,000  dollars. 


110 


In  case  the  Court  shall  think  that  our  rights  are  invaded,  it 
will  not  be  necessary  to  destroy  the  new  bridge.  The  deci¬ 
sion  need  not  run  against  the  public  convenience.  The  bridge 
may  be  allowed  to  stand,  as  the  legislature  have  given  their  con¬ 
sent  to  the  obstruction  of  navigation,  and  the  Court  can  adjudge 
the  defendants  to  be  our  trustees.  Such  a  decree  would  perhaps 
lead  to  an  agreement  between  the  parties. 

Some  general  remarks  have  been  made,  to  show  the  solicitude 
of  courts  not  to  overturn  a  legislative  act,  unless  its  unconstitu¬ 
tionality  is  manifest.  Certainly  if  a  judge  has  doubts,  they  will 
weigh  in  favour  of  the  act.  But  it  should  be  considered,  that  all 
cases  of  this  sort  will  involve  some  doubt ;  for  it  is  not  to  be  sup¬ 
posed  that  the  legislature  will  pass  an  act  which  is  palpably  uncon¬ 
stitutional.  The  correct  ground  is  this,  that  the  Court  shall  inter¬ 
fere  and  declare  an  act  to  be  void,  where  the  case,  which  may 
have  been  doubtful,  shall  be  made  out  to  be  clear  by  examina¬ 
tion.  Besides,  members  of  the  legislature  sometimes  vote  for  a 
law,  of  the  constitutionality  of  which  they  are  in  doubt,  upon  the 
consideration  that  the  question  may  be  determined  by  the  ju¬ 
diciary  power.  This  act  of  1S27  was  passed  in  the  house  of 
representatives  by  a  majority  of  five  or  six  votes.  We  could 
show,  if  it  were  proper,  that  more  than  six  members  voted  for  it 
because  the  unconstitutionality  of  it  ivas  doubtful;  leaving  it  to 
this  Court  to  determine  the  question.  Now  if  the  legislature 
are  to  pass  a  law  because  its  unconstitutionalily  is  doubtful,  and 
the  judge  is  to  hold  it  valid  because  its  unconstitutionality  is  doubt¬ 
ful,  in  what  a  predicament  is  the  citizen  placed.  The  legislature 
pass  it  de  bene  esse  ;  if  the  question  is  not  met  here  and  decided 
upon  principle,  then  the  responsibility  rests  nowhere,  and  the  con¬ 
stitutional  provision  for  annulling  an  act,  instead  of  a  shield,  is  a 
sword.  It  is  the  privilege  of  an  American  judge  to  decide  on  con¬ 
stitutional  questions.  It  has  raised  the  dignity  of  the  judicial  sta¬ 
tion.  Without  entertaining  an  ill  opinion  of  legislative  bodies,  it  is 
no  disparagement  of  them  to  say,  that  judicial  tribunals  are  the 
only  ones  suitable  for  the  investigation  of  difficult  questions  of 
private  right. 

The  case  was  continued  nisi,  and  during  the  November  term 
1829  the  judges  delivered  their  opinions  seriatim. 


Ill 


Morton  J.  The  plaintiffs,  in  their  bill,  complain  that  the  de¬ 
fendants  are  engaged  in  erecting  a  bridge  across  Charles  river, 
which,  when  erected,  will  divert  the  travel  from  the  plaintiffs’ 
bridge,  and  as  to  them  will  be  a  nuisance.  And  they  pray  for  a 
perpetual  injunction  against  the  defendants,  to  restrain  them  from 
completing  the  bridge  which  they  are  employed  in  constructing, 
and  also  from  suffering  passengers  to  go  over  the  same. 

When  the  bill  was  filed,  the  plaintiffs  moved  for  an  immediate 
injunction  to  prohibit  the  defendants  from  further  proceeding  in  the 
construction  of  their  bridge,  until  they  should  file  an  answer  to  the 
bill  and  there  should  be  a  hearing  and  final  decision  upon  the 
merits  of  the  case.  This  question  was  fully  argued  and  duly 
considered  by  the  Court.  And  it  was  determined,  that  under 
the  statute  of  1827,  c.  38,  “giving  relief  in  equity  in  cases  of 
waste  and  nuisance,”  this  Court  had  jurisdiction  of  the  case,  and 
possessed  the  power  to  grant  injunctions  to  prevent  the  creation 
of  nuisances,  as  well  as  to  abate  them  when  created  ;  but  that 
the  present  was  not  such  a  clear  and  incontrovertible  case  of 
nuisance,  or  one  of  such  urgent  necessity,  as  to  call  for  the  ex¬ 
ercise  of  that  extraordinary  power  which  must  necessarily  be 
founded  on  a  prejudication  of  the  case.  No  further  opinion 
was  then  given  or  formed  in  relation  to  the  important  question 
now  presented  for  our  consideration,  than  that  it  was  not  so  clear 
and  easy  of  solution  as  to  admit  of  even  a  temporary  decision, 
without  an  answer  from  the  defendants,  and  a  full  hearing  upon 
the  bill  and  answer. 

Since  the  commencement  of  this  suit,  the  defendants’  bridge 
has  been  completed  and  is  in  use.  The  effects  which  the 
plaintiffs  apprehended  from  it  have  been  fully  realized,  in  the 
diversion  of  a  large  portion  of  travel  from  their  bridge. 

The  early  measures  adopted  to  restrain  and  prohibit  the 
erection  of  the  new  bridge,  fully  apprized  the  defendants  of  the 
grounds  and  extent  of  the  plaintiffs’  claims.  And  the  defen¬ 
dants,  with  full  knowledge  of  the  question  raised  in  relation  to 
their  authority,  having  chosen  to  proceed  rather  than  await  the 
decision  of  this  tribunal,  have  placed  themselves  upon  their 
strict  constitutional  rights,  and  can  have  no  reason  to  complain 
or  expect  sympathy,  should  their  authority  turn  out  to  be  void, 


\ 


112 


their  bridge  be  decided  to  be  a  nuisance,  and  a  forcible  abate¬ 
ment  of  it  by  the  arm  of  civil  power,  be  decreed. 

The  Warren  bridge,  being  over  a  navigable  river  or  arm  of 
the  sea,  is  clearly  a  nuisance,  unless  authority  to  erect  it  be  de¬ 
rived  from  the  commonwealth.  But  if  unauthorized,  it  is  a 
nuisance  of  such  a  public  nature,  that  the  plaintiff's  cannot  com¬ 
plain  of  it,  in  this  form,  unless  their  rights  are  injuriously  affect¬ 
ed  by  it.  A  public  nuisance  is  the  subject  of  indictment,  but 
not  of  private  action  at  law  or  in  equity,  unless  special  damage 
be  sustained. 

An  authority  to  erect  a  bridge  over  navigable  waters  may  be 
valid  as  to  the  public,  so  as  to  bar  an  indictment  and  prevent  an 
abatement  of  it  as  a  public  nuisance,  and  yet  be  void  as  to  indi¬ 
viduals  whose  property  is  destroyed  or  private  rights  violated  by  it. 

It  appears  by  the  bills  as  well  as  answers,  that  the  Warren 
bridge  was  erected  under  the  authority  of  an  act  of  the  legisla¬ 
ture  of  the  commonwealth.  And  it  is  not  pretended  that  the 
defendants  have  failed  to  avail  themselves  of  the  provisions  of 
the  act,  or  in  any  w>ay  varied  from  or  exceeded  the  powers 
vested  in  them  by  it. 

The  question  which  is  distinctly  presented  for  our  decision, 
and  which  must  necessarily  be  directly  met  in  the  adjudication 
of  this  case,  relates  to  the  validity  of  the  defendants’  charter. 
Is  the  “  Act  to  establish  the  Warren  Bridge  Corporation,”  pass¬ 
ed  on  the  12th  of  March  182S,  valid  and  operative,  or  null  and 
void  ?  It  purports  to  authorize  the  construction  of  a  bridge 
over  the  navigable  waters  of  Charles  river.  It  is  an  act  of  the 
highest  legislative  power  of  the  commonwealth,  and  must  have 
force  as  a  law,  unless  the  legislature,  in  passing  it,  transcended 
their  powers,  or  unless  it  contravenes  some  express  provision 
of  the  constitution  of  this  state  or  of  the  United  States. 

It  is  an  axiom  in  our  government,  that  all  legitimate  power 
emanates  from  the  people.  Legislators  act  by  delegated  au¬ 
thority,  and  only  as  the  agents  of  the  people.  The  constitution 
contains  the  grant  of  their  powers.  If  they  exercise  any  not 
contained  in  this  instrument,  it  is  usurpation.  And  such  acts 
are  void  for  the  want  of  authority  to  make  or  pass  them. 

Navigable  waters  are  public  property,  and  the  superintendence 


113 


and  regulation  of  them  and  of  all  other  means  of  communication 
between  different  parts  of  the  commonwealth,  clearly  come 
within  the  general  powers  vested  in  our  legislature.  Grot.  bk. 
2,  c.  3,  §  9  ;  Yattel,  bk.  1,  §  100,  244  ;  1  Bl.  Com.  264;  2 
Inst.  624  ;  1  Hawk.  P.  C.  c.  76,  §  1  ;  Hale  De  Jure  Maris, 
bk.  3,  §  9.  The  grant  of  the  charter  of  the  Warren  bridge 
is  therefore  within  the  general  scope  of  legislative  authority, 
and  is  not  a  case  of  excess  of  power.  So  far  as  the  charter 
operates  as  a  license  to  throw  an  obstruction  across  a  navigable 
river,  and  so  far  as  the  public  interest  is  concerned,  it  seems  to 
be  a  valid  act.  Whatever  may  be  the  opinion  of  the  Court  as 
to  its  effect  upon  the  plaintiffs’  rights,  the  defendants  ought  to 
be  protected  from  a  public  prosecution,  and  this  elegant  speci¬ 
men  of  convenience  and  skill  in  this  branch  of  architecture  be 
spared  from  a  forcible  abatement  as  a  public  nuisance.  Should 
the  plaintiffs  prevail,  it  is  hoped  the  court  will  find  some  adequate 
mode  of  redress  consistent  with  the  preservation  of  this  great 
public  accommodation. 

The  act  incorporating  the  proprietors  of  the  Warren  bridge 
contains  in  itself  no  provisions  prohibited  by  the  constitution  ; 
and  having  been  passed  in  pursuance  of  the  general  powers 
vested  in  the  legislative  department  by  the  people,  it  can  be 
avoided  only  by  showing  that  there  existed  in  this  particular 
case  some  extraneous  constitutional  impediment  to  its  enactment. 
If  such  impediment  exists,  it  must  have  been  created  by  the 
legislature  itself.  Having  been  invested  with  the  power,  it  could 
not  be  divested  but  by  its  own  act,  or  an  act  of  the  sovereign 
power  of  the  people  in  altering  the  constitution  itself.  The  leg¬ 
islature  can  divest  itself  of  power  and  bind  successive  legisla¬ 
tures,  only  by  some  act  in  the  nature  of  a  compact.  If  one 
legislative  body  makes  a  valid  grant  or  contract  of  any  kind,  it 
would  be  inconsistent  with  the  first  principles  of  natural  justice, 
as  well  as  of  constitutional  law,  for  a  succeeding  legislature  to  re¬ 
sume  the  grant  or  avoid  the  contract. 

The  plaintiffs  claim  under  a  grant  from  the  government, 
either  immediately  to  themselves,  or  derived  to  them  through 
the  medium  of  Harvard  College.  That  these  grants  vested  in 
the  respective  grantees,  beneficial  interests,  and  constituted 
15 


114 


contracts  between  them  and  the  commonwealth,  is  too  clear 
and  well  settled  to  be  questioned.  New  Jersey  v.  Wilson, 

7  Cranch,  164  ;  Terrett  v.  Taylor,  9  Cranch,  49  ;  Dartmouth 
College  v.  Woodward,  4  Wheat.  560. 

The  plaintiffs  contend  that  the  defendants’  charter  is  invalid, 
because  it  is  inconsistent  with  the  last  clause  of  the  tenth  section 
of  the  constitution  of  the  United  States,  with  the  fifth  article  of 
the  amendments  to  the  same,  and  with  the  tenth  article  of  the 
declaration  of  rights  of  this  commonwealth.  They  attempt  to 
show  that  the  grant  to  the  defendants  impairs  the  obligation  of 
the  contract  existing  between  the  commonwealth  and  them¬ 
selves  ;  and  also  that  their  private  property  has  been  taken  and 
appropriated  to  public  uses  without  a  just  and  reasonable  com¬ 
pensation. 

Whether  the  grant  to  the  defendants  interferes  with  the  vested 
rights  of  the  plaintiffs  under  the  former  grants,  must  depend 
upon  the  true  construction  of  the  several  acts  of  the  legislature 
making  those  grants. 

The  plaintiffs  claim  an  exclusive  right  to  take  toll  of  all  per¬ 
sons  passing  over  Charles  river  between  Charlestown  and  Bos¬ 
ton.  This  light  they  derive  to  themselves  in  two  ways.  First, 
by  a  legislative  grant  to  Harvard  College  and  an  assignment  by 
the  college  to  themselves.  Secondly,  by  a  direct  grant  from 
the  government  to  themselves. 

In  relation  to  the  first  branch  of  the  subject  two  inquiries 
naturally  suggest  themselves.  First,  what  was  the  extent  of  the 
grant  to  Harvard  College,  and  what  did  the  grantees  take  under 
it  ?  Secondly,  has  the  right  or  interest  which  the  college  took, 
whatever  may  have  been  its  extent,  passed  to  the  plaintiffs  ? 

The  grant  to  the  college,  as  made,  confirmed  and  explained 
in  several  legislative  acts,  was  of  a  ferry,  or  of  the  income  or 
revenue  of  a  ferry.  The  import  and  meaning  of  these  several 
ancient  acts  have  been  fully  discussed,  and  several  questions 
raised  in  relation  to  them,  which  it  will  be  proper  briefly  to  con¬ 
sider. 

Whether  we  refer  to  the  act  of  1640,  which  purports  to  be 
a  direct  grant  of  the  ferry,  or  to  the  subsequent  acts  recognizing 
and  confirming  the  former  grant,  as  of  the  income  or  revenue 


115 


of  the  ferry,  it  is  manifest  that  some  permanent  indefeasible 
interest  was  intended  to  be  passed,  and  did  actually  vest  in  the 
college.  To  construe  these  acts  into  mere  gratuities  or  dona¬ 
tions  during  the  pleasure  of  the  legislature,  would  be  equally 
irreconcilable  with  the  beneficent  objects  which  they  have  in 
view,  the  terms  of  the  acts,  and  the  practical  construction  of 
them  for  more  than  a  century  and  a  half. 

Ferries  in  this  country,  as  well  as  in  England,  are'  the  sub¬ 
ject  of  property,  and  like  other  incorporeal  hereditaments,  are 
capable  of  transmission  by  grant  or  devise.  In  England  their 
original  source  is  the  prerogative  of  the  Crown.  Churchman  v. 
Tunstal,  Hardr.  163.  But  in  this  state  they  can  only  be  de¬ 
rived  from  the  legislature. 

In  the  further  discussion  of  this  subject  I  shall  proceed  upon 
the  assumption,  that  the  franchise  of  the  ferry  was  the  property 
of  the  college  previous  to  and  until  the  grant  of  the  plaintiffs’ 
charter. 

The  extent  of  this  franchise  or  right  must  depend  upon  the 
construction  of  the  act  by  which  it  was  created.  And  it  is  ap¬ 
parent  from  an  examination  of  the  several  acts  and  the  usage 
under  them,  that  the  college  took  and  held  the  franchise  sub¬ 
ject  to  the  general  superintendence  and  regulation  of  the  legis¬ 
lature  of  the  commonwealth.  Neither  the  management  of  the 
ferry,  nor  the  number  of  boats  to  be  employed,  nor  the  rate  of 
toll,  is  established  in  either  of  these  acts.  Was  the  power  to 
regulate  these  subjects  granted  to  the  college,  or  reserved  to  the 
legislature  ?  If  the  former,  then  public  convenience,  so  far  as 
related  to  the  transportation  across  the  river  by  this  ferry,  was 
made  to  depend  upon  the  pleasure  of  an  interested  corporation, 
instead  of  the  sovereign  power  of  the  state.  It  cannot  be  sup¬ 
posed,  that  the  college  had  the  exclusive  right  to  the  transpor¬ 
tation  across  the  river,  and  also  the  unlimited  power  to  fix  the 
rate  of  toll  for  such  transportation. 

The  college,  in  accepting  the  right  granted,  assumed  corres¬ 
ponding  obligations.  If  they  were  to  receive  the  profits  of  the 
ferry,  they  were  bound  to  furnish  reasonable  accommodations  for 
the  public  ;  to  submit  to  the  general  regulations  of  ferries 
throughout  the  state  ;  and  to  take  such  just  and  reasonable  toll 


116 


as  from  time  to  time  the  legislature  should  establish.  Such 
seems  to  be  the  tenure  by  which  ferries  were  generally  holden, 
except  in  cases  where  the  toll  or  other  stipulations  were  fixed 
in  the  grant. 

The  grant  of  a  ferry  confers  on  the  grantees  an  exclusive 
right,  but  the  extent  of  the  right  must  depend  upon  the  terms 
of  the  grant. 

The  grant  of  an  exclusive  right  to  take  toll  at  a  ferry,  or 
bridge,  or  turnpike,  is  not  a  monopoly,  which  is  deemed  so 
odious  in  law,  nor  one  of  the  particular  and  exclusive  privileges 
distinct  from  those  of  the  community,  which  are  reprobated  in 
our  bill  of  rights.  The  grant  is  upon  a  condition  precedent, 
which  requires  the  performance  of  services  beneficial  to  the 
public,  before  the  right  to  lake  toll  vests. 

In  all  cases  the  legislature  may  make  the  grant  more  or  less 
exclusive,  and  more  or  less  extensive,  according  to  their  opinion 
of  the  expediency  of  the  measure  or  the  necessity  of  the  case. 
Originally,  the  legislature  might  have  established  a  ferry  with 
an  exclusive  right  to  the  transportation  of  all  passengers  across 
Charles  river  in  its  whole  extent,  or  one  with  the  right  to  all  the 
transportation  between  Charlestown  and  Boston,  or  several  be¬ 
tween  those  two  towns,  each  with  a  right  only  to  take  toll  of  such 
passengers  as  might  choose  to  use  it. 

This,  though  an  ancient,  is  not  a  'prescriptive  ferry.  Co. 
Lit.  115a;  Hull  v.  Horner,  Cowp.  102.  Its  commencement 
is  clearly  shown.  But  prescription  always  presupposes  a  grant ; 
and  I  can  perceive  no  difference  between  the  two,  except  in  the 
mode  of  proof.  In  prescription,  the  proof  is  by  the  use,  and 
the  right  presumed  to  be  granted  is  co-extensive  with  the  use. 
If  the  grant  itself  be  produced,  the  extent  must  be  determined 
by  the  terms  of  the  grant.  In  the  case  before  us,  if  a  prescription 
had  been  shown  for  the  college  to  transport  across  Charles  river 
all  passengers  between  Charlestown  and  Boston,  it  would  have 
been  evidence  that  a  grant  to  that  extent  had  been  made.  So 
if  a  deed,  conveying  the  same  exclusive  right,  had  been  produced, 
it  would  necessarily  have  established  the  same  right  in  the  col¬ 
lege.  The  only  difference  would  have  been  in  the  mode  of  proof. 


117 


The  grant  to  the  college  is  of  record.  The  history  of  the 
origin  and  continuance  of  the  ferry  is  well  known,  and  clearly 
shown  in  the  exhibits  filed  in  the  case. 

In  1 630,  the  governor  was  ordered  to  permit  the  first  appli¬ 
cant  “  to  set  up  a  ferry  betwixt  Boston  and  Charlton,”  at  a  cer¬ 
tain  rate  of  toll. 

In  1 633,  Mr.  Brown  was  allowed  to  keep  a  ferry  over  Charles 
river  against  his  house.  Whether  this  was  instead  of,  or  in  ad¬ 
dition  to  the  former  proposed  ferry,  does  not  clearly  appear. 

In  1635,  a  ferry  was  established  “  on  Boston  side  to  trans¬ 
port  men  to  Charlton  and  Winnesimet.” 

In  1637,  the  governor  and  treasurer  were  empowered  to  let 
the  ferry  between  Boston  and  Charlestown  at  a  rent  of  40?. 
per  annum ,  for  the  term  of  three  years.  In  pursuance  of  this 
authority  the  ferry  was  let  to  a  man  by  the  name  of  Converse. 

In  1638,  “  a  ferry  is  appointed  from  Boston  to  Winnesimit, 
Noddle’s  Island  and  the  ships — the  person  to  be  appointed  by 
the  magistrates  of  Boston.” 

In  1640,  the  treasurer  and  others  were  empowered  “to  let 
the  ferry  between  Boston  and  Charlestown  to  whom  they  pleas¬ 
ed  ;  after  the  expiration  of  the  subsisting  lease  ”  to  Converse. 

In  August  1 640,  “  the  ferry  between  Boston  and  Charlestown 
is  granted  to  the  college.” 

In  1654  and  1655,  the  existence  and  validity  of  the  grant  is 
recognised  and  continued  under  the  name  of  the  profit  or  rent 
of  the  ferry. 

It  is  manifest  that  the  right  of  the  college  to  the  ferry  was 
not  founded  on  prescription.  And  the  plaintiffs  cannot  now  call 
to  their  aid  any  principles  or  reasoning  peculiar  to  this  kind  of 
title,  or  any  rules  of  evidence  applicable  to  this  mode  of  proof. 

By  the  grant  to  the  college  it  is  contended,  that  the  exclusive 
right  of  transportation  between  Boston  and  Charlestown  passed. 
The  case  of  Tripp  v.  Frank ,  4T.  R.  666,  is  relied  upon  to  sup¬ 
port  this  position.  But  a  very  cursory  examination  of  that  case  will 
show,  that  the  plaintiffs  can  derive  no  aid  from  it,  in  support  of 
their  construction  of  this  grant.  That  was  a  case  of  prescrip¬ 
tion,  and  not  of  express  grant.  In  that  case  the  plaintiff-  proved 
an  exclusive  prescriptive  right  to  the  transportation  of  persons 


118 


across  the  Humber  between  Hull  and  Barton ;  but  in  this,  the 
question  in  controversy  is,  whether  the  exclusive  right  of  transpor¬ 
tation  between  Boston  and  Charlestown  was  granted  or  not.  In 
that,  the  exclusive  right  between  the  two  towns  was  not  dis¬ 
puted,  but  the  only  question  was,  whether  a  transportation  from 
one  of  those  towns  obliquely  across  the  river  to  another  town 
two  miles  lower  down,  was  a  violation  of  the  plaintiff’s  exclu¬ 
sive  right.  The  court  held  that  it  was  not,  and  that  the  trans¬ 
portation  across  the  river  from  one  of  those  towns  to  any  point 
above  or  below  the  other,  unless  done  to  avoid  the  plaintiff’s 
ferry  and  in  fraud  of  his  right,  was  not  an  infringement  of  his 
franchise. 

What  then  is  the  true  meaning  of  this  grant  to  the  college  ? 

It  was  not  the  creation  of  a  new  franchise,  the  extent  and 
limits  of  which  were  then  to  be  established  ;  but  it  was  the  grant 
of  an  old  one,  with  its  then  existing  rights  and  privileges.  The 
terms  “  the  ferry,”  as  used  in  the  grant,  clearly  recognise  its 
pre-existence.  No  new  rights  or  privileges  were  then  added, 
nor  was  there  any  attempt  to  fix  or  define  the  old  ones.  But 
it  passed  just  as  it  existed  at  the  time  of  the  grant. 

The  prior  acts  creating  and  regulating  this  ferry  are  so  brief 
and  general,  that  it  js  very  difficult  to  ascertain  the  precise 
meaning  of  them,  or  the  extent  of  the  franchise  which  was 
thereby  granted.  Indeed  it  is  not  probable  that  any  definite 
limits  were  intended  to  be  affixed  to  it.  This  seems  to  me  to 
be  a  case  in  which  usage  and  a  contemporary  practical  exposition 
of  the  grant  are  admissible  evidence,  and  furnish  a  pretty  safe 
guide  in  its  construction.  That  the  tendency  of  this  evidence, 
so  far  as  we  have  gone  into  it,  is  to  support  the  exclusive  right 
to  the  extent  claimed,  I  think  cannot  be  doubted.  But  upon 
this  it  is  not  necessary  to  give  an  opinion,  for  the  view  which  I 
take  of  the  subsequent  facts  of  the  case  renders  a  decision  of 
this  point,  or  the  further  investigation  of  this  part  of  the  sub¬ 
ject,  unnecessary. 

For  I  am  clearly  of  opinion,  that  the  franchise  of  the  ferry, 
or  the  right  of  the  college  in  it,  whatever  might  have  been  its 
extent,  never  passed  to  the  plaintiffs.  And  further,  had  it  pass¬ 
ed,  I  think  they  could  not  avail  themselves  of  it  in  support  of 
this  bill. 


119 


The  right  of  the  college  did  not  vest  in  the  plaintiffs.  The 
act  of  the  legislature  did  not  pass  it.  The  legislature  itself  had 
no  power  to  transfer  it.  It  could  only  pass  by  the  act  of  the 
corporation  of  Harvard  College.  The  constitution  no  where 
invests  any  branch  of  the  government  with  the  despotic  power 
of  transferring  the  property  of  one  man  or  corporation  to  an¬ 
other.  Such  an  act  would  be  subversive  of  the  principal  ends 
of  government,  of  the  fundamental  laws  of  the  social  compact, 
and  of  the  principles  of  reason  and  moral  rectitude,  as  well  as 
irreconcilable  with  the  letter  and  spirit  of  our  national  and 
state  constitutions.  And  the  legislature  could  no  more  take 
private  property  from  one  person  and  vest  it  in  another,  with  an 
indemnity,  than  without  one.  It  is  only  in  case  of  public  exi¬ 
gency  that  private  property  can  be  taken,  and  then  only  for 
public  use,  and  upon  making  a  just  and  reasonable  compensa¬ 
tion.  There  is  not  the  slightest  evidence  of  any  intention  or 
attempt  on  the  part  of  the  legislature,  to  transfer  any  property 
or  right  of  the  college  to  the  proprietors  of  Charles  river  bridge. 

If  the  plaintiffs  ever  acquired  the  franchise  of  the  ferry,  it 
must  have  been  by  purchase.  This  incorporeal  hereditament 
could  only  pass  by  deed.  There  exists  no  written  instrument 
under  seal,  and  it  is  not  pretended  that  there  is  any  legal  con¬ 
veyance  of  this  estate. 

It-istrue,  that  in  equity  an  agreement  to  convey  might  be  holden 
to  be  equivalent  to  an  actual  conveyance.  But  where  is  the  evi¬ 
dence  of  any  contract  between  these  parties  ?  It  is  not  in  writing. 
And  I  have  seen  no  proof  of  any  kind,  that  any  negotiation  or 
treaty  was  ever  entered  into  between  them.  There  is,  in  short, 
nothing  in  the  original  application  for  the  charter  of  Charles 
river  bridge,  in  the  proceedings  upon  that  application,  in  the 
transactions  of  Harvard  College,  or  in  the  plaintiffs’  act  of  in¬ 
corporation  itself,  which  has  the  slightest  tendency  to  convince 
my  mind,  that  there  was  any  intention  or  desire  in  any  of  the 
parties  to  make  a  contract  of  sale  or  a  transfer  of  the  franchise 
of  the  ferry. 

The  charter  of  the  Charles  river  bridge  was  a  compact. 
The  parties  to  it  were  the  commonwealth  on  one  part  and  the 
corporation  on  the  other.  The  charter  itself  does  not  purport 


120 


to  convey  the  franchise  of  the  ferry,  or  to  vest  in  the  corpora¬ 
tion  any  right  appertaining  to  a  ferry.  The  college  was  no  par¬ 
ty  to  it,  and  its  validity  did  not  depend  upon  any  act  of  the  col¬ 
lege.  Its  assent  would  not  give  life  to  the  charter,  nor  would 
its  dissent  defeat  it. 

If  the  plaintiffs  are  the  owners  of  the  franchise  of  the  ferry, 
what  will  become  of  their  ferry  right  at  the  expiration  of  their 
charter?  Will  they  then  have  a  right  to  put  the  ferry  in 
operation  again,  and  complain  of  the  old  bridge  for  interfering 
with  these  rights  ?  Their  charter  answers  these  inquiries. 
The  bridge  will  revert  to  the  commonwealth,  and  no  ferry  right 
can  prevent  the  use  of  it  in  such  manner  as  the  legislature  shall 
direct.  If  the  plaintiffs  had  been  the  proprietors  of  the  ferry, 
in  accepting  the  charter  of  the  bridge  they  must  necessarily 
have  surrendered  the  franchise  of  the  ferry,  or  it  would  have 
become  merged  in  that  of  the  bridge. 

The  grant  to  the  plaintiffs  was  inconsistent  with  the  vested 
rights  of  the  college,  and  destructive  of  their  private  property. 
The  bridge  was  to  be  erected  upon  the  ferry-ways.  They 
both  could  not  exist  together.  The  act  of  the  legislature  directly 
interfered  with  the  use  of  the  franchise  of  the  ferry.  But  in  my 
opinion  it  was  a  justifiable  interference.  The  public  exigency 
required,  that  the  property  of  the  college  should  be  taken  for 
the  public  accommodation,  and  a  compensation  was  provided, 
which  the  college  accepted,  and  of  which  they  never  have 
complained  as  being  unreasonable  or  unjust.  Perry  v.  Wilson, 
7  Mass.  R.  395  ;  Stevens  v.  Middlesex  Canal,  12  Mass.  R. 
468 ;  Vanhorne's  Lessee  v.  Dorrance,  2  Dallas,  304  ;  Mar- 
bary  v.  Madison,  1  Cranch,  137  ;  Wilkinson  v.  Leland,  2 
Peters’s  Sup.  Ct.  R.  627 ;  Gardner  v.  JVetvburgh,  2  Johns. 
Ch.  R.  168. 

When  the  ferry  was  established,  and  for  a  long  time  after,  it 
was  deemed  a  mode  of  conveyance  sufficient  for  the  public  ac¬ 
commodation.  But  in  about  a  century  and  a  half  the  popula¬ 
tion  and  business  of  the  two  adjoining  towns  and  of  the  surround¬ 
ing  country,  had  increased  so  much  as  to  require  a  different 
mode  of  communication.  Although  at  first  the  ferry  might  be 
deemed  adequate  to  the  public  wants,  yet  it  soon  became  ob- 


121 


vious,  that  the  time  would  arrive  when  public  convenience  and 
necessity  would  demand  a  more  easy  mode  of  transportation. 
Of  the  time  when  such  change  became  necessary,  the  legisla¬ 
ture  were  the  exclusive  judges.  They  have  determined  it ; 
and  of  their  decision  no  one  has  the  right,  or,  so  far  as  I  know, 
the  inclination  to  complain. 

1  am  therefore  of  opinion,  that  the  legislature,  having  rightful¬ 
ly  decided  that  the  public  exigency  required  that  the  franchise 
of  the  ferry  should  be  taken,  did  seize  it,  after  providing  a  suit¬ 
able  indemnity,  not  for  the  purpose  of  granting  the  same  to  the 
plaintiffs,  but  to  enable  them  to  make  a  compact  by  means  of 
which  the  public  wants  should  be  satisfied  in  a  particular  in 
which  the  ferry  was  insufficient  to  answer  that  purpose. 

The  charter  of  the  plaintiffs  was  rightly  granted,  and  consti¬ 
tuted  a  valid  compact  between  them  and  the  commonwealth, 
the  import  of  which  we  shall  hereafter  consider.  But  it  seems 
to  me  very  clear,  that  there  was  no  contract  made  by  the  plain¬ 
tiffs,  to  which  the  college  was  a  party,  nor  any  other' act  done 
by  the  college  whereby  they  transferred  their  right  to  the  plain¬ 
tiffs  ;  that  neither  in  law  nor  equity  can  the  plaintiffs  be  consid¬ 
ered  the  successors  or  assignees  of  the  college. 

But  if  they  were,  I  cannot  perceive  how  they  could  support 
their  present  bill  on  the  right  of  the  ferry.  They  never  pre¬ 
tended  to  use  the  ferry.  It  has  been  discontinued  for  more 
than  forty  years.  They  do  not  complain  of  any  loss  of  passen¬ 
gers  in  their  ferry-boats,  for  they  have  none.  Their  ownership 
of  the  ferry  would  not  have  authorized  them  to  build  a  bridge. 
Pain  v.  Patrick,  3  Mod.  294.  Their  authority  to  do  this  de¬ 
pends  upon  their  charter,  and  the  whole  injury  of  which  they 
complain,  is  the  diversion  of  travellers  from  their  bridge,  and 
the  consequent  loss  of  toll.  The  plaintiffs  must  therefore  rest 
the  support  of  their  bill  solely  upon  the  grant  of  the  legislature 
to  them. 

This  brings  us  to  the  consideration  of  their  charter.  By  this 
certain  exclusive  rights  are  secured  to  them,  and  the  question 
which  we  are  now  to  consider  is  the  extent  of  these  exclusive 
rights.  I  have  endeavoured  to  show,  that  upon  the  correct  solu¬ 
tion  of  this  question  the  decision  of  this  case  must  depend. 

16 


122 


The  act  incorporating  the  proprietors  of  Charles  river  bridge 
was  accepted  by  them.  It  then  became  a  compact  between 
them  and  the  commonwealth.  Neither  party  has  any  right  to 
violate  it. 

The  charter,  which  was  originally  limited  to  forty  years,  was, 
by  a  subsequent  act,  extended  to  seventy.  That  this  extension 
was  fairly  and  rightfully  obtained,  has  not  been  questioned  by 
the  defendants’  counsel  in  the  present  argument.  And  I  have  no 
doubt  that  it  was  duly  accepted  by  the  plaintiffs,  and  now  gives 
them  the  same  right  which  they  would  have  possessed  under 
their  charter,  had  it  extended  seventy  instead  of  forty  years  im 
its  commencement.  I  shall  therefore  treat  it  as  a  subsisting 
compact,  without  reference  to  the  period  of  its  first  limitation. 

What  are  the  terms  of  this  compact  ?  The  corporation  on 
their  part  bound  themselves  to  erect  and  maintain,  during  the 
time  limited  in  their  charter,  a  bridge  of  the  description,  and  ac¬ 
cording  to  the  terms  mentioned  in  the  act,  and  to  pay  to  Harvard 
College  two  hundred  pounds  annually  during  the  same  period. 
On  the  other  hand,  the  commonwealth  contracted,  that  the 
plaintiffs  should  have  and  enjoy  during  the  same  term  the  bene¬ 
fits  and  privileges  of  a  corporate  body,  should  hold  and  manage 
the  bridge  then  to  be  erected,  with  all  its  privileges  and  advan¬ 
tages,  as  corporate  property,  and  should  have  a  right  to  demand 
and  receive  of  all  passengers  over  the  bridge  a  specified  rate  of 
toll.  These  are  the  principal  stipulations  of  the  respective  par¬ 
ties  contained  in  the  charter  ;  and  besides  these  there  are  no  ex¬ 
press  covenants  on  the  part  of  the  commonwealth,  bearing  upon 
the  question  under  consideration.  There  is  no  warranty  that  the 
channels  of  communication  to  and  from  the  bridge  should  remain 
the  same  as  they  then  were,  or  that  the  public  business,  legis¬ 
lative  or  judicial,  should  continue  to  be  done  in  the  same  places 
it  then  was,  and  it  is  manifest,  that  any  loss  of  travel  by  a  change 
in  either  of  these  respects  would  be  a  damage  to  the  plaintiffs, 
of  which  they  would  have  no  right  to  complain. 

The  plaintiffs  are  vested  with  an  exclusive  right  to  take  the 
stipulated  rate  of  toll,  and  the  legislature  have  no  constitutional 
power  to  reduce,  alter  or  abolish  it.  But  of  whom  are  the  plain¬ 
tiffs  entitled  to  receive  this  toll  ?  Is  it  of  all  persons  having  oc- 


123 


casion  to  pass  Charles  river,  or  of  all  persons  passing  between 
Charlestown  and  Boston,  or  only  of  such  persons  as  may  actu¬ 
ally  pass  over  their  bridge  ? 

The  right  of  taking  toll  is  not  co-extensive  with  the  river  itself, 
because  at  the  date  of  the  charter  there  was  a  bridge  at  Cam¬ 
bridge,  and  the  charter  must  be  construed  with  reference  to  the 
state  of  things  at  that  time. 

The  act  of  incorporation  does  not  limit  the  toll  to  the  towns 
of  Boston  and  Charlestown,  nor  is  there  any  reference  to  the 
travel  between  those  two  towns,  unless  it  be  in  the  title  of  the 
act.  There  is  no  rule  in  construing  statutes  better  settled,  than  that 
the  title  of  an  act  does  not  constitute  a  part  of  the  act.  The 
charter  itself  does  not  describe  the  bridge  as  between  Charles¬ 
town  and  Boston,  but  grants  authority  to  erect  “  a  bridge  over 
Charles  river  in  the  place  where  the  old  ferry  was  then  kept.” 
These  towns  are  not  named,  except  for  the  purpose  of  de¬ 
scribing  the  then  existing  ferry.  There  are  therefore  no  words 
used  in  the  charter,  limiting  the  plaintiffs’  right  to  the  travel  be¬ 
tween  those  two  towns. 

The  ferry  was  manifestly  referred  to  for  the  purpose  of  fix¬ 
ing  the  place  where  the  bridge  should  be  located,  and  not  with 
a  view  of  defining  the  rights  granted  to  the  proprietors. 

The  inference  seems  to  me  to  be  unavoidable,  that  the  grant 
must  be  construed  either  to  vest  a  right  to  take  toll  of  all  passen¬ 
gers  across  Charles  river  below  Cambridge  bridge,  or  only  a  right 
to  take  toll  of  such  persons  as,  under  all  the  changes  which  the 
population,  business  and  state  of  the  country  might  undergo, 
should  choose  to  pass  at  this  bridge.  In  other  words,  that  the 
exclusive  right  either  extends  from  the  mouth  of  the  river  to 
Cambridge  bridge,  or  is  limited  to  the  bridge  itself.  If  this  be 
not  a  necessary  alternative,  I  would  inquire  what  points  upon 
the  river  above  and  below  the  bridge  can  be  fixed  upon  as  the 
specific  boundary  of  the  plaintiffs’  right  ?  I  have  shown  that  the 
limits  of  the  two  adjoining  towns  do  not  constitute  this  boundary. 
It  cannot  be  presumed  that  the  legislature  of  the  commonwealth 
would  make  a  grant  of  a  valuable  franchise  so  vague  and  indefi¬ 
nite  in  its  terms  as  to  be  unintelligible :  nor  can  it  be  presumed 
that  the  grantees  would  accept  such  a  grant.  The  presumption 


124 


is  an  impeachment  of  the  discernment  and  forecast  of  the  cor¬ 
porators  as  well  as  of  the  wisdom  of  the  legislature.  By  adopt¬ 
ing  either  of  these  alternatives  we  have  a  grant  with  definite  in¬ 
telligible  limits.  By  rejecting  them  and  seeking  some  interme¬ 
diate  point,  we  are  left  without  any  guide,  and  are  compelled 
to  depend  on  conjecture,  or  general  notions  of  justice  or  ex¬ 
pediency,  which  will  be  different  in  different  individuals,  to  de¬ 
termine  the  extent  of  a  franchise,  which  ought  to  be  well  de¬ 
fined  and  certain.  If  we  are  necessarily  brought  to  choose  be¬ 
tween  these  two  alternatives,  which  shall  we  adopt  ? 

In  the  discussion  of  this  subject,  I  think  much  aid  may  be 
derived  from  an  examination  of  the  charters  of  other  private 
corporations.  Bank  incorporations,  though  not  precisely  analo¬ 
gous,  are  not  entirely  dissimilar.  They  owe  and  perform  one¬ 
rous  duties  to  the  commonwealth,  which  form  a  good  considera¬ 
tion  for  the  grants  of  their  charters.  They  pay  a  heavy  tax  to 
the  state,  and  make  loans  to  it,  when  required  by  the  legislature, 
at  a  lower  rate  of  interest  than  is  taken  from  other  debtors. 

The  legislature  might  for  a  limited  time,  and  upon  proper 
considerations,  grant  to  a  corporation  the  exclusive  right  of 
banking  within  any  town  or  county  or  throughout  the  common¬ 
wealth.  And  it  was  once  contended  by  learned  and  respecta¬ 
ble  men,  that  the  first  bank-charter  gave  this  extensive  exclusive 
right.  This  opinion  is  undoubtedly  an  incorrect  one,  and  is  now 
generally  exploded.  And  yet  it  seems  to  me,  that  the  grant  of 
a  bank  in  a  particular  town  has  some  points  of  similarity  to  the 
grant  of  a  bridge  across  a  river  at  a  particular  place  or  between 
two  towns.  If  new  banks  are  established  in  the  same  town  or 
place,  the  old  one  suffers  perhaps  as  much  by  injurious  compe¬ 
tition,  as  the  proprietors  of  an  old  bridge  by  the  erection  of  a 
new  one  across  the  same  river  or  between  the  same  towns. 
Some  of  the  arguments  in  favour  of  an  exclusive  right  are  ap¬ 
plicable  to  both  cases.  It  is  however  well  settled  and  indispu¬ 
table,  that  a  bank-charter  does  not  contain  any  restriction  upon 
the  legislative  power,  which  will  prevent  the  establishment  of 
rival  institutions. 

Turnpike  charters  are  still  more  analogous.  Perhaps  it 
would  be  difficult  to  point  out  the  difference  between  the  rights 


125 


of  bridge  and  turnpike  corporations  in  this  respect.  Both  are 
intended  for  the  public  accommodation  by  furnishing  facilities 
for  travel  and  transportation.  The  proprietors  of  both  owe  sim¬ 
ilar  duties  to  the  public.  They  are  bound  to  keep  them  in  re¬ 
pair  and  convenient  for  use,  and  both  derive  their  support  from 
the  same  source,  viz.  the  tolls  which  they  are  authorized  to  levy. 
The  charters  of  both  ought  therefore  to  be  expounded  by  the 
same  rules  of  construction. 

How  far  have  the  proprietors  of  turnpikes  an  exclusive  right  ? 
Is  it  a  violation  of  their  charters  for  the  legislature  to  grant  new 
turnpikes,  or  the  county  commissioners  to  lay  out  new  roads, 
which  will  divert  any  portion  of  travel  from  them  ?  If  so,  none 
of  the  older  turnpike  charters  are  inviolate,  and  very  few  of  the 
more  recent  ones  are  valid.  Scarcely  a  turnpike  has  been  estab¬ 
lished  in  the  state  since  the  first,  which  has  not  diverted  more 
or  less  of  the  travel  from  the  former  ones.  Are  these  charters 
void?  If  a  very  small  diversion  of  travel  is  not  inconsistent 
with  a  former  charter,  how  much  will  it  require  to  render  it 
void?  Will  one  quarter,  or  one  half,  or  three  quarters  do  it? 
If  it  is  a  matter  of  right  founded  on  contract,  the  slightest  injury 
is  as  truly  a  violation  of  the  contract  as  the  greatest,  even  the 
entire  destruction  of  the  franchise.  In  relation  to  turnpikes,  I 
can  see  no  medium  between  the  smallest  diversion  of  travel, 
and  the  limitation  of  the  grant  to  the  turnpike  road  itself.  Ei¬ 
ther  the  right  is  to  receive  toll  of  all  persons  who  would  pass  over 
the  road  without  any  alteration  of  the  public  channels  of  com¬ 
munication,  or  it  is  only  to  take  toll  of  such  as  may  pass  under 
any  changes  which  the  progressive  improvements  of  the  country 
may  demand.  I  can  entertain  no  doubt  which  of  the  two  con¬ 
structions  ought  to  be  adopted.  Turnpike  charters  have  re¬ 
ceived  a  practical  exposition,  which,  though  never  sanctioned 
by  judicial  authority,  has  been  long  acquiesced  in,  and  is  be¬ 
lieved  to  be  a  sound  one.  In  many  cases  the  legislature  have 
established  new  turnpikes,  some  nearly  parallel  with  and  divert¬ 
ing  travel  to  the  injury  and  sometimes  ruin  of  former  ones. 
There  never  has  been  brought  before  any  judicial  tribunal,  a 
question  as  to  the  constitutionality  of  these  charters.  But  many 
adjudications  have  been  based  upon  their  validity. 


126 


There  is  no  contract  by  the  commonwealth,  that  no  new 
charter  shall  be  granted,  which  shall  interfere  with  the  business 
or  profits  of  the  old.  And  the  legislature  do  not  limit  or  re¬ 
strict  the  power  of  their  successors  in  establishing  new  corpora¬ 
tions,  wherever  in  their  discretion  they  shall  determine  that  the 
public  good  requires  them. 

In  some  cases,  charters  have  been  granted  for  the  erection  of 
bridges  across  rivers,  over  which  none  existed  before.  Does 
this  give  an  exclusive  right  to  all  the  travel  over  such  rivers  ? 
And  would  the  grant  of  a  charter  for  a  new  bridge,  over  the 
same  river,  which  should  divert  any  travel,  however  small  in 
amount,  violate  the  first  contract  ?  It  manifestly  would  not. 
If  then  a  slight  diversion  of  travel  would  not  contravene  the 
first  charter,  the  exclusive  right  does  not  extend  to  the  whole 
travel  which  would  have  passed  over  the  first  bridge  if  no  new 
one  had  been  erected.  How  near  then  must  the  new  one  be, 
and  how  much  of  the  travel  must  it  divert,  to  become  a  nui¬ 
sance  ?  It  would,  I  believe,  be  difficult,  if  not  impossible,  to  give 
a  definite  answer  to  this  question. 

Does  the  charier  of  a  bridge  or  turnpike  give  to  it  an  exclu¬ 
sive  right  to  the  line  of  travel  which  passed  over  it  when  first 
constructed  ?  This  is  an  indefinite  and  uncertain  expression,  and 
the  line  of  travel  is  every  where  very  fluctuating.  But  if  it  has 
any  certain  definition,  it  must  mean  the  travel  from  all  those 
parts  of  the  country  from  which  it  passed  at  the  time  of  the 
completion  of  the  bridge  or  turnpike.  A  grant  or  covenant  to  this 
extent  would  amount  to  a  stipulation,  that  the  channels  of  com¬ 
munication  and  course  of  business,  and  in  fact  the  state  of  society 
and  of  the  country  itself,  should  remain  stationary.  A  change 
of  the  roads,  the  improving  of  an  old,  or  the  laying  out  of  a 
new  one,  at  a  great  distance  from  a  bridge  or  turnpike,  might 
affect  the  travel  over  it.  The  change  of  business  or  the  open¬ 
ing  a  new  market  at  one  extremity  of  the  state,  might  diminish 
the  transportation  over  a  bridge  or  road  at  the  other.  I  think 
therefore  that  the  extent  of  the  exclusive  right  granted  is  in  no 
case  defined  or  limited  by  a  reference  to  any  particular  line  of 
travel. 


% 


127 


If  every  turnpike  and  bridge  charter  contains  a  covenant  or 
stipulation  that  no  new  turnpike  or  other  road  or  bridge  shall  be 
made,  which  will  divert  the  travel  or  diminish  the  profits  of  the 
old  one,  then  deplorable  is  the  state  of  almost  every  incorpora¬ 
tion  of  this  kind  in  the  commonwealth.  They  have  been  act¬ 
ing  and  expending  their  money  on  the  faith  of  void  charters,  and 
all  their  acts  have  been  unauthorized,  and  so  far  as  they  interfered 
with  the  rights  of  others,  were  trespasses  upon  private  property. 

If  the  diversion  of  toll  is  inconsistent  with  an  existing  charter, 
it  cannot  be  justified  by  legislative  authority.  The  act  author¬ 
izing  it  would  impair  the  obligation  of  a  contract,  and  be  void 
by  the  constitution  of  the  United  States.  Although  the  legisla¬ 
ture  may  appropriate  private  property,  may  take  the  whole  fran¬ 
chise  of  a  corporation,  when  the  public  exigency  requires  it,  by 
indemnifying  the  owners  ;  yet  a  contract  is  deemed  sacred,  and 
the  constitution  nowhere  allows  the  violation  of  its  obligations, 
by  any  branch  of  government,  for  any  exigency  or  upon  making 
compensation  for  the  injury.  The  supreme  law  of  the  land  ex¬ 
pressly  and  peremptorily  interdicts  the  legislatures  of  the  sever¬ 
al  states  from  passing  any  law  impairing  the  obligations  of  con¬ 
tracts.  Any  legislative  act,  assuming  the  form  of  law,  having  this 
effect,  is  a  nullity  and  a  blank  upon  the  statute  book. 

If  therefore  the  different  private  charters  in  the  commonwealth 
granted  for  the  purpose  of  improving  the  state  of  the  country 
and  bettering  the  condition  of  the  people,  are  to  receive  the  ex¬ 
tensive  construction  contended  for,  they  amount  to  an  entire 
prohibition  of  all  further  internal  improvement  during  their 
continuance.  No  improved  road,  no  new  bridge,  no  canal,  no 
rail-road  can  be  constitutionally  established.  For  I  think,  in  the 
present  state  of  our  country,  no  such  improved  channel  of  com¬ 
munication  can  be  opened  without  diminishing  the  profits  of  some 
old  corporation. 

It  is  vain  to  say  that  the  new  corporations  may  proceed  in  their 
enterprises  of  public  utility,  by  paying  to  the  old  ones  the  dam¬ 
ages  which  they  sustain.  I  think  I  have  shown  that  the  diver¬ 
sion  of  toll  is  a  consequential  damage,  which  cannot  be  justified 
under  the  authority  to  take  private  property  for  public  uses,  and 
that  if  it  is  inconsistent  with  the  provisions  of  a  former  charter,  it 


128 


w 


is  void.  If  I  have  succeeded  in  establishing  these  Uvo  proposi¬ 
tions,  which  seem  to  me  to  be  extremely  clear ;  then  it  neces¬ 
sarily  follows,  that  such  new  corporations  can  exist  only  by  the 
consent  of  the  old  ones  ;  and  may  be  restrained  from  proceeding 
or  declared  to  be  legal  nullities,  whenever  the  old  corporations 
whose  emoluments  are  diminished,  shall  choose  to  appeal  to 
the  equity  jurisdiction  of  this  Court. 

If,  however,  such  be  the  necessary  and  true  construction  of 
the  charters  granted  by  the  legislature,  fiat  justitia  ;  let  the  pub¬ 
lic  faith  be  preserved  inviolate  ;  let  the  contracts  of  the  govern¬ 
ment,  according  to  their  true  import,  be  rigidly'  enforced.  But 
if  consequences  so  inconsistent  with  the  improvement  and  pros¬ 
perity  of  the  state  result  from  the  liberal  and  extended  construc¬ 
tion  of  the  charters  which  have  been  granted,  we  ought,  if  the 
terms  used  will  admit  of  it,  rather  to  adopt  a  more  limited  and  re¬ 
stricted  one,  than  to  impute  such  improvidence  to  the  legislature. 

In  the  further  examination  of  this  subject,  I  am  more  fully 
convinced  of  the  correctness  of  the  position  which  I  advanced 
in  relation  to  the  plaintiffs’  charter,  viz.  that  it  either  gave  them 
the  exclusive  right  to  all  the  travel  across  Charles  river  below 
the  Cambridge  bridge,  in  the  state  in  which  the  channel  of  com¬ 
munication  between  the  metropolis  and  the  surrounding  country 
then  was,  or  only  the  right  to  take  toll  of  such  persons  as,  under 
the  changing  and  improving  state  of  our  country,  should  choose 
to  pass  their  bridge. 

If  one  or  the  other  of  these  constructions  must  be  the  true 
one,  then  which  shall  we  adopt  ?  If  the  former,  then  every  new 
bridge  across  the  river,  every  turnpike  and  every  common  high¬ 
way,  which  has  diverted  a  traveller  from  the  plaintiffs’  bridge, 
has  been  an  infringement  of  their  chartered  rights,  and  a  viola¬ 
tion  of  public  faith.  This  construction  would  amount  substan¬ 
tially  to  a  covenant,  that  during  the  plaintiffs’  charter  an  impor¬ 
tant  portion  of  our  commonwealth,  as  to  facilities  for  travel  and 
transportation,  should  remain  in  statu  quo.  I  am  on  the  whole 
irresistibly  brought  to  the  conclusion,  that  this  construction  is 
neither  consonant  with  sound  reason,  with  judicial  authorities, 
with  the  course  of  legislation,  nor  with  the  principles  of  our  free 
institutions. 


129 


It  only  remains  for  me  to  adopt  the  latter  construction  of  this 
grant,  and  hold,  that  the  plaintiffs’  right,  by  virtue  of  their  com¬ 
pact  with  the  commonwealth,  only  extends  to  the  taking  of  toll 
of  such  persons  as  may  pass  their  bridge,  and  that  this  com¬ 
pact  contains  no  covenant  or  agreement  that  they  shall  be  en¬ 
titled  to  a  certain  extent  or  particular  line  of  travel. 

This  manifestly  is  the  literal  construction  of  the  act  and  sat¬ 
isfies  all  its  words. 

The  words  are,  “  that  a  toll  be  and  hereby  is  granted :  ” 
For  whose  benefit  ?  “  For  the  sole  benefit  of  the  proprietors.” 

Of  whom  is  it  to  be  collected  ?  Of  passengers  or  persons  pass¬ 
ing  the  bridge.  The  act  contains  no  covenant  or  stipulation 
as  to  the  extent  of  travel,  nor  any  limitation  or  restriction  upon 
subsequent  legislatures  in  relation  to  other  charters  or  grants. 

I  have  now  endeavoured  to  show,  that  the  act  incorporating 
the  proprietors  of  Charles  river  bridge  contains  no  express  grant 
of  an  exclusive  right  beyond  the  limits  of  the  bridge  itself,  nor 
any  covenant  on  the  part  of  the  commonwealth,  that  no  new 
bridge  shall  be  erected  which  shall  diminish  the  profits  of  the 
old  one.  It  only  remains  for  me  to  consider,  whether  there  is 
any  such  grant  or  covenant  by  implication. 

The  general  rule  is,  that  in  governmental  grants  nothing  pass¬ 
es  by  implication.  Bac.  Abr.  Prerogative,  F.  2  ;  17  Vin.  Abr. 
Prerogative,  C.  c ;  Planklty  v.  Winstanley,  3  T.  R.  288  ; 
The  Case  of  the  Royal  Fishery  of  the  Panne,  Davies,  157; 
Finch’s  Law,  100;  Legafs  Case,  10  Co.  112;  The  Elsebe, 
5  Rob.  Adtn.  Rep.  162.  In  England,  where  such  grants  em¬ 
anate  from  the  prerogative  of  the  crown,  this  rule  is  well  estab¬ 
lished.  “  A  subject’s  grant,”  says  Blackstone,  (2  Coin.  248,) 
“  shall  be  construed  to  include  many  things  besides  what  are  ex¬ 
pressed,  if  necessary  for  the  operation  of  the  grant.”  “  But 
the  king’s  grant  shall  not  enure  to  any  other  intent  than  that 
which  is  precisely  expressed  in  the  grant.”  If  this  is  the  rule 
under  a  monarchical  government  and  in  grants  of  the  king,  by 
much  stronger  reason  ought  it  to  prevail  under  a  republican 
government  and  in  legislative  grants.  It  is  much  more  appli¬ 
cable  to  agents  of  short  continuance,  than  to  hereditary  officers. 
The  commonwealth  is  the  grantor,  the  legislature  is  the  agent, 
17 


130 


and  the  grant  actually  proceeds  from  the  people  in  their  collec¬ 
tive  sovereign  capacity.  Private  charters  are  a  limitation  or 
restriction  of  legislative  power,  and  are  binding  not  only  upon 
the  legislators  who  make  them,  but  upon  their  successors  ever 
after.  It  is  a  branch  of  legislation  in  which  the  immediate  ac- 
'tors,  touching  the  subject  acted  upon,  exhaust  the  whole  power 
which  has  been  committed  to  the  legislative  department,  and 
thus  leave  their  successors  with  less  of  sovereignty  than  they 
themselves  possessed.  I  apprehend,  however,  that  in  England, 
and  even  in  this  country,  the  rule  cannot  be  sustained  in  the 
full  extent  in  which  it  is  laid  down  by  Blackstone,  but  must 
receive  some  qualification.  But  that  public  grants  are  to  be 
construed  more  strictly  and  less  favorably  to  the  grantee  than 
private  ones,  I  believe  will  admit  of  no  doubt.  Blankley  v. 
fVinstanley,  3  T.  R.  279  ;  Boulton  v.  Bull,  2  H.  Bl.  500. 

Although  exclusive  rights  for  short  periods  sometimes  encour¬ 
age  enterprises  of  public  usefulness,  yet  generally  their  tenden¬ 
cy  is  to  impede  the  march  of  public  improvement,  and  to  inter¬ 
rupt  that  fair  and  equal  competition  which  it  has  ever  been  the 
policy  of  our  country  to  encourage.  They  are  not,  and  never 
have  been,  favourites  with  our  government,  and  are  not  to  be 
presumed  to  have  been  granted  farther  than  the  express  words 
of  the  grant  will  warrant. 

Although  no  distinct  thing  or  right  will  pass  by  implication, 
yet  I  do  not  mean  to  question  that  the  words  used  should  be 
understood  in  their  most  natural  and  obvious  sense,  and  that 
whatever  is  essential  to  the  enjoyment  of  the  thing  granted,  will 
be  necessarily  implied  in  the  grant.  Co.  Lit.  56  a;  Plowd. 
317  ;  Saunders's  Case,  5  Co.  12. 

The  considerations  which  I  have  before  offered  for  the  pur¬ 
pose  of  showing  that  the  plaintiffs’  charter  ought  to  receive  a 
strict  and  limited  construction,  tend,  with  equal,  perhaps  greater 
force,  to  prove  that  it  ought  not  to  be  extended  by  implication 
so  as  to  include  the  extensive  exclusive  rights  claimed  by  the 
plaintiffs. 

The  authority  to  build  the  bridge  itself  is  granted  by  impli¬ 
cation.  But  it  is  a  necessary  implication.  Without  it,  the  grant 
itself  would  be  an  absurdity  and  a  nullity.  Not  so  with  the  rights 


131 


claimed.  The  grant  was  of  a  franchise.  This  might  be  enjoyed 
under  the  construction  which  I  hold  to  be  correct,  as  well  as  under 
the  more  extensive  one  contended  for  by  the  plaintiffs.  It  is  true 
the  franchise  would  be  more  valuable  under  the  one  construction 
than  the  other.  But  the  rule  does  not  apply  to  the  value.  The 
grantees  cannot  claim  any  additional  privilege  or  immunity  be¬ 
cause  it  will  increase  the  value  of  the  thing  granted,  but  only 
where  it  is  necessary  to  the  enjoyment  of  it. 

The  case  of  the  Portland  Bank  v.  Apthorp,  12  Mass.  R. 
252,  seems  to  me  to  be  a  strong  illustration  of  the  principle  for 
which  I  contend.  The  Portland  bank  had  a  charter  for  a  lim¬ 
ited  term,  containing  the  powers,  duties  and  liabilities  of  the 
corporation.  During  the  continuance  of  the  charter  a  tax  of 
one  per  cent,  per  annum  on  the  capital  stock  was  imposed  on 
all  the  banks  in  the  state.  The  Portland  bank  resisted  the  pay¬ 
ment  of  this  tax,  on  the  ground  that  the  law  imposing  it  was 
inconsistent  with  their  charter,  and  as  to  them,  inoperative. 

They  must  have  contended,  and  doubtless  did,  that  they 
acted  under  a  charter  which  was  a  contract  with  the  common¬ 
wealth  ;  that  this  contract  did  not  require  of  them  the  payment 
of  such  a  tax,  but  by  necessary  implication  exempted  them 
from  all  duties  not  specifically  enumerated  in  the  charter ; 
that  they  were  bound  to  continue  their  corporation  during  the 
period  of  its  limitation  ;  that  the  tax  was  a  heavy  burden  ;  that 
they  might  not  have  accepted  their  charter  with  such  a  burden  ; 
and  that  it  was  a  violation  of  the  spirit,  if  not  the  letter  of  their 
contract,  to  compel  them  to  perform  duties  which  were  not 
contemplated  when  they  accepted  their  charter,  and  from  which 
they  could  not  relieve  themselves  by  a  surrender  of  it. 

But  these  objections  to  the  validity  of  the  tax  were  overrul¬ 
ed,  and  the  Court  held,  that  the  charter  contained  no  implied 
exemption  from  a  general  tax,  which  might  be  imposed  upon 
any  description  of  property  of  which  they  were  owners.  The 
legislature  did  not  impose  upon  themselves  any  restriction  in 
relation  to  the  taxation  of  the  property  in  the  common¬ 
wealth.  And  the  stockholders  accepted  their  charter  with 
a  knowledge  of  the  power  of  the  legislature  over  these  sub¬ 
jects. 


132 


In  the  case  before  us,  the  proprietors  of  Charles  river  bridge 
must  be  presumed  to  have  accepted  their  charter  with  an  un¬ 
derstanding  that  the  legislature  possessed  the  general  authority 
to  make  laws  regulating  the  navigable  waters,  the  mediums  of 
communication,  and  many  other  subjects  which  might  increase 
or  diminish  the  value  or  profits  of  the  franchise  granted  to  them. 
No  restraint  upon  this  authority  can  be  raised  by  implication. 
They  must  therefore  have  taken  their  charter  subject  to  this 
authority,  and  have  relied  upon  the  wisdom  and  justice  of  the 
legislature,  and  not  upon  any  provisions  of  their  charter,  to  pro¬ 
tect  them  from  unjust  and  unreasonable  competition.  Whether 
in  this  respect  they  have  reason  to  complain,  we  have  no  right 
to  inquire  or  give  an  opinion.  Our  confidence  in  a  co-ordinate 
branch  of  the  government  forbids  a  presumption  so  inconsistent 
with  its  dignity  and  the  respect  due  to  it. 

That  the  plaintiffs’  rights  cannot  be  extended  by  implication 
beyond  what  is  necessary  to  the  enjoyment  of  the  thing  specifi¬ 
cally  granted,  and  that  there  is  nothing  in  the  case  to  favour  the 
doctrine  of  implied  grants  or  covenants,  I  think  manifest — 

Because  the  grant  was  made  by  agents  appointed  for  short 
periods  and  with  limited  powers  : — 

Because  the  grant  itself  is  a  restriction  upon  the  power  of 
subsequent  legislatures  : — 

Because  the  extension  of  the  grant  is  in  derogation  of  the 
rights  and  against  the  interests  of  the  people  : — 

Because  it  tends  to  promote  monopolies  and  exclusive  privi¬ 
leges,  which  ever  ought  to  be  guarded  against  and  restrained  : — 
and 

Because  such  constructions  of  existing  grants  would  prove 
an  insuperable  obstacle  to  future  improvements. 

I  am  therefore  of  opinion,  that  the  plaintiffs’  charter  does  not 
contain,  expressly  or  impliedly,  any  such  grant  or  covenant  as 
they  contend  for. 

It  may  be  urged  against  this  construction  of  the  plaintiffs’ 
and  other  similar  grants,  that  it  will  take  from  the  grantees  all 
encouragement  to  commence  hazardous  and  expensive  enter¬ 
prises  for  the  public  benefit. 


133 


If  1  am  asked  what  security  they  have  that  their  reasonable 
expectations  of  remuneration  will  not  be  destroyed  by  the  es¬ 
tablishment  of  rival  institutions,  I  answer,  that  they  have  secu¬ 
rity  in  the  self-interest  of  individuals,  who  will  never  engage  in 
expensive  works  without  a  prospect  of  remuneration.  Unless 
it  is  believed  that  a  new  bridge  or  turnpike  will  be  profitable  to 
the  proprietors,  it  will  never  be  made  to  the  injury  of  the  old 
one.  They  have  security  in  their  confidence  in  the  legislature ; 
that,  in  consulting  the  good  of  the  whole,  they  will  not  sacrifice 
or  injure  the  property  of  one  portion  of  the  community  for  the 
benefit  of  another.  And  they  have  still  higher  security  in  the 
constitutional  provision,  that  private  properly  shall  not  be  taken 
for  public  uses  without  a  reasonable  compensation.  No  new 
bridge,  turnpike  or  common  highway  can  be  expected  to  be 
established  without  the  taking  of  private  property,  and  therefore 
no  such  new  channel  of  communication  can  be  opened,  except 
where  public  convenience  and  necessity  shall  require  it.  If  all 
these  are  not  sufficient  encouragement  to  public  improvements 
and  sufficient  security  against  injurious  or  destructive  competi¬ 
tion,  then  I  say  that  it  was  the  fault  of  the  grantees  that  they 
did  not  make  a  more  favourable  bargain,  or  that  they  acceded 
to  an  injurious  compact.  In  all  cases  they  may  require  an  ex¬ 
press  grant  of  an  exclusive  right  within  certain  limits,  or  a  clear 
stipulation  that  no  rival  institution  shall  be  authorized-  within  a 
certain  distance.  Such  provisions  are  often  inserted  in  charters 
in  neighbouring  states,  and  there  has  been  at  least  one  instance 
in  this  commonwealth.  In  1792  the  exclusive  right,  for  a  limit¬ 
ed  period,  of  making  a  canal  between  Connecticut  river  and 
the  metropolis,  was  granted  to  a  number  of  individuals  who  were 
incorporated. 

Although  the  correct  exposition  of  the  contract  now  under 
examination  is  very  important  to  the  parties  to  this  suit  and  to 
other  corporations  now  in  existence,  yet  it  is  of  little  import  in 
relation  to  the  promotion  of  public  enterprise,  or  in  any  respect 
in  relation  to  charters  hereafter  to  be  granted.  When  the  con¬ 
struction  of  this  charter  is  settled,  the  parties  to  future  ones  will 
take  care  to  insert  such  express  provisions  and  stipulations  as 
they  shall  deem  promotive  of  the  public  good,  and  secure 
against  any  unreasonable  private  competition. 


134 


The  duty  which  we  are  required  to  perform  in  the  present 
case,  is  the  most  difficult  and  important  which  can  fall  to  the  lot 
of  judicial  officers.  It  is  to  revise,  scrutinize  and  compare  with 
the  constitution  and  decide  upon  the  validity  of  an  act  of  the 
legislature  of  the  commonwealth.  For  one  branch  of  the  gov¬ 
ernment  to  re-examine  the  acts  of  a  co-ordinate  branch,  and 
determine  upon  their  conformity  to  the  constitution  under  which 
both  act,  and  to  declare  them  valid  or  invalid  according  to  its 
opinion  of  such  conformity,  is  a  high,  delicate  and  invidious 
power  ;  one  which  will  no  more  be  exerted  in  doubtful,  than  it 
will  be  omitted  in  clear  cases. 

The  act  under  consideration,  we  are  bound  to  presume,  re¬ 
ceived  due  deliberation  from  all  branches  of  the  legislature. 
Of  the  expediency  of  passing  it  ;  of  its  bearing  upon  the  in¬ 
terests  of  different  individuals,  corporations  and  sections  of  the 
state  ;  of  the  public  convenience  and  necessity  which  required 
the  seizure  of  private  property,  they  are  the  exclusive  judges. 
And  we  have  no  more  the  inclination,  than  the  means,  of  re-ex¬ 
amining  any  of  these  questions.  But  upon  its  constitutionality 
we  are  bound  to  decide.  If  it  clearly  contravenes  any  consti¬ 
tutional  provision,  our  duty  is  plain.  The  act  is  a  nullity.  Bat 
if  this  point  is  doubtful,  our  reluctance  to  exert  so  high  and 
delicate  a  power,  our  respect  for  the  legislature,  and  our  con¬ 
fidence  in  a  co-ordinate  department  cf  the  government,  would 
require  us  to  give  validity  to  its  acts.  For  myself,  however, 
I  have  no  need  in  the  present  case  to  resort  to  this  principle. 

From  the  most  thorough  and  deliberate  examination  which  I 
have  been  able  to  give  to  the  present  case,  I  am  fully  convinc¬ 
ed,  that  the  act  under  which  the  defendants  erected  their  bridge 
is  not  an  infringement  of  the  plaintiffs’  rights,  and  does  not  vio¬ 
late  any  provision  of  the  state  or  national  constitution.  I  am 
therefore  of  opinion,  that  the  plaintiffs’  bill  ought  to  be  dismissed. 

Wilde  J.  I  concur  in  the  opinion  of  my  learned  brother, 
and  am  fully  satisfied  with  the  reasons  given  to  support  it. 
This,  however,  being  a  case  of  great  interest,  not  only  to  the 
parties,  but  to  the  public  also,  I  feel  bound  to  go  over  the 
grounds  of  discussion,  and  more  at  large  than  I  should  think 
necessary  or  useful  in  a  case  of  ordinary  importance. 


135 


I  shall,  however,  pass  over  one  branch  of  the  case  without 
remark,  namely,  that  which  relates  to  the  ancient  title  of 
Harvard  College  ;  because  I  am  of  opinion,  that  there  has  been 
no  legal  or  equitable  transfer  of  this  title  to  the  plaintiffs.  It  is 
admitted  that  there  has  been  no  legal  assignment  from  the  col¬ 
lege,  and  it  appears  to  me  equally  clear,  that  nothing  has  been 
shown,  that  can  amount  to  an  assignment  in  equity.  The  plain¬ 
tiffs  contend,  that  by  the  payment  of  the  annuity  of  200/.  to  the 
college,  they  became  purchasers  of  the  right  to  the  ferry  ;  that 
an  agreement  on  the  part  of  the  college  to  assign,  may  be  pre¬ 
sumed  ;  and  that  in  equity,  an  agreement  to  assign  is  equiva¬ 
lent  to  an  actual  assignment.  But  I  thipk  the  basis  of  this  ar¬ 
gument  wholly  fails,  because  I  cannot  perceive  that  the  payment 
of  the  annuity,  under  the  circumstances  of  the  case,  has  any 
tendency  to  prove  a  purchase  of  the  college  right.  This  annu¬ 
ity  was  paid  in  pursuance  of  an  express  provision  in  the  plain¬ 
tiffs’  act  of  incorporation.  It  was  the  price  paid  for  their  char¬ 
ter;  and  which  was  to  be  reimbursed  to  them  by  the  tolls. 
The  annuity  therefore  has  been  eventually  paid  by  the  public  ; 
and  the  case,  in  my  opinion,  stands  on  the  same  footing  as  it 
would,  provided  the  annuity  had  been  made  payable  into  the 
public  treasury,  and  the  government  had  made  compensation  to 
the  college.  If,  therefore,  there  was  a  purchase  of  the  college 
rights,  the  government,  and  not  the  plaintiffs,  must  be  regarded 
as  the  purchasers.  I  cannot  however  view  the  transaction  in 
the  light  of  a  purchase  ;  the  intention  unquestionably  was  to  ex¬ 
tinguish  the  right  of  ferry,  and  to  provide  an  equivalent;  which 
I  think  is  apparent  from  the  language  of  the  plaintiffs’  act  of  in¬ 
corporation.  For  the  annuity  to  the  college  was  not  to  cease 
at  the  expiration  of  the  plaintiffs’  charter  ;  but  the  bridge  was 
then  to  revert  to  the  commonwealth,  “  saving  to  the  college  a 
reasonable  and  annual  compensation  for  the  annual  income  of 
the  ferry  which  they  might  have  received  had  not  such  bridge 
been  erected.”  So  that  it  is  clear,  I  think,  that  the  right  of 
ferry  was  intended  to  be  extinguished,  and  in  no  event  to  be  re¬ 
vived.  And  it  was  accordingly  extinguished  by  the  acquies¬ 
cence  of  the  college.  That  it  was  so  considered  at  the  time  by 
the  plaintiffs  themselves,  I  can  have  little  doubt ;  otherwise  it 


136 


would  be  difficult  to  account  for  their  neglecting  to  require  from 
the  college  a  transfer  of  their  franchise.  But  however  this  may 
be,  I  am  clearly  of  opinion  that  the  plaintiffs  have  derived 
no  right  or  title  from  the  college.  I  consider  then  the  plain¬ 
tiffs’  rights,  whatever  they  may  be,  as  exclusively  derived 
from  the  grants  of  government  under  the  acts  of  1784,  c.  53, 
and  of  1791,  c.  62,  and  the  case,  in  my  opinion,  altogether  de¬ 
pends  on  the  true  construction  of  these  acts. 

The  rule  of  construction  as  to  royal  grants  seems  to  be  per¬ 
fectly  well  settled,  as  laid  down  by  Blackstone,  2  Com.  347. 
When  they  are  made  at  the  suit  of  the  grantee,  they  shall  be 
taken  most  beneficially  for  the  king  ;  contrary  to  the  grants  of 
common  persons.  Thus  if  the  king  grants  lands  to  one  and  his 
heirs  male,  this  is  merely  void  ;  for  it  is  not  an  estate  tail,  as 
there  are  no  words  of  procreation,  &c.  and  it  is  not  a  fee  sim¬ 
ple,  because  it  may  reasonably  be  presumed  that  the  king  only 
intended  to  give  an  estate  tail.  So  if  the  king  makes  a  grant  of 
lands  and  the  mines  therein  contained,  and  royal  mines  are 
found  therein,  they  shall  not  pass.  And  so  if  the  king  grants 
lands  or  a  rent,  and  limits  no  particular  estate  in  the  gift,  the 
grant  is  void,  and  the  patentee  has  not  an  estate  for  life,  not 
even  an  estate  at  will. 

The  reason  given  is,  that  in  grants  proceeding  from  the  ap¬ 
plication  of  the  subject,  the  grantees  ought  to  know  what  they 
ask,  and  if  that  does  not  appear,  nothing  shall  pass  from  the 
king,  by  reason  of  the  uncertainty.  Bnc.  Prerog.  F.  2. 

So  also  if  the  king  grants  the  right  to  seize  and  bring  in  for 
adjudication  all  ships  of  the  enemy,  yet  this  does  not  deprive 
the  king  of  the  power  afterwards  to  except  certain  ships  or  par¬ 
ticular  classes  of  the  enemy’s  ships.  For  it  does  not  bind  the 
crown  in  its  power  of  qualifying  the  right  granted,  by  subsequent 
modifications  which  the  public  good  may  require.  For  the 
general  presumption  is,  says  Lord  Stowell,  that  the  government 
does  not  mean  to  divest  itself  of  this  universal  attribute  of  sove¬ 
reignty,  unless  it  is  clearly  and  unequivocally  expressed.  And 
again,  Lord  Stowell  remarks,  “  against  an  individual  it  is  pre¬ 
sumed,  that  he  meant  to  convey  a  benefit  with  the  utmost  lib¬ 
erality  that  his  words  will  bear.  It  is  indifferent  to  the  public 


137 


in  which  person  an  interest  remains.  With  regard  to  the  grant 
of  the  sovereign  it  is  far  otherwise.  It  is  not  held  by  the  sove¬ 
reign  himself  as  private  property  ;  and  no  alienation  shall  be 
presumed,  except  that  which  is  clearly  and  indisputably  ex¬ 
pressed.”  The  Elsebe,  5  Rob.  Adm.  Rep.  1  63. 

I  am  not  aware  of  any  good  reason  why  the  same  general 
rule  of  construction  should  not  be  applied  to  grants  from  the 
legislature,  especially  when  they  relate  to  objects  connected 
with  the  public  interest  or  convenience.  I  confess,  however, 
that  I  am  not  prepared  to  adopt  all  the  English  decisions  on  this 
point ;  some  of  which  (and  particularly  the  case  cited  as  re¬ 
ported  by  Sir  John  Davies)  appear  to  me  to  have  pushed  the 
privilege  of  the  royal  prerogative  to  an  extent  inconsistent  with 
the  principles  of  impartial  justice.  But  in  doubtful  cases,  it 
seems  to  me  a  sound  and  wholesome  rule  of  construction,  to 
interpret  public  grants  most  favourably  to  the  public  interest, 
and  that  they  are  not  to  be  enlarged  by  doubtful  implications. 
It  is  said  that  all  the  prerogatives  of  the  crown  must  be  for  the 
advantage  and  good  of  the  people,  otherwise  they  ought  not 
to  be  allowed  by  the  law.  Moore,  672.  Whether  this  be  the 
correct  theory  of  the  British  government  or  not,  it  is  certain^that 
under  our  form  of  government,  every  branch  of  the  sovereign 
power  is  to  be  exercised  for  the  benefit,  accommodation  and  hap¬ 
piness  of  the  people.  When,  therefore,  the  legislature  makes  a 
grant  of  a  public  franchise,  it  is  not  to  be  extended  by  construc¬ 
tion  beyond  its  clear  and  obvious  meaning;  more  especially 
when  the  question  of  interpretation  relates  to  exclusive  privi¬ 
leges,  which  all,  more  or  less,  tend  to  monopolies  ;  though  some 
are  very  properly  allowed,  for  the  encouragement  of  invention 
and  enterprise.  If  this  rule  of  construction  be  not  observed, 
the  hands  of  the  legislature  may  be  tied  against  their  will,  and 
they  may  be  injuriously  restrained  in  the  exercise  of  the  impor¬ 
tant  power  and  duty  of  providing  for  the  public  welfare. 

There  are  some  legislative  grants,  no  doubt,  that  may  admit 
a  different  rule  of  construction,  such  as  grants  of  land  on  valua¬ 
ble  consideration  and  the  like.  It  is  said  that  when  the  king’s 
grants  are  upon  valuable  consideration,  they  shall  be  construed 
favourably  for  the  patentee  for  the  honour  of  the  king.  Bac. 

18 


138 


Prerog.  F.  2.  But  to  bring  a  grant  within  this  exception  to 
the  general  rule  of  construction,  the  grantee  must  show  a  con¬ 
sideration  in  some  measure  adequate,  as  well  as  valuable. 

I  proceed  now  to  consider  what,  according  to  these  estab¬ 
lished  principles,  is  the  true  construction  of  the  act  of  1784, 
c.  53,  and  that  of  the  additional  act  of  1791,  c.  62. 

It  has  been  denied  by  the  defendants’  counsel,  that  the  latter 
act  or  grant  was  accepted  by  the  corporation  ;  but  there  was  an 
express  acceptance  before  the  expiration  of  the  first  grant ;  and 
I  see  no  reason  why  this  acceptance  was  not  in  season.  But 
without  that,  the  previous  acts  of  the  corporation  are  sufficient 
to  authorize  the  Court  to  presume  an  acceptance.  Grants 
beneficial  to  corporations  may  be  presumed  to  be  accepted,  as 
well  as  grants  to  individuals,  and  an  express  acceptance  is  not 
necessary.  Bank  of  United  States  v.  Dandridge,  12  Wheat. 
70. 

To  return  then  to  the  construction  of  these  acts.  In  the  pre¬ 
amble  of  the  first  act  it  is  recited,  that  the  erecting  of  a  bridge 
over  Charles  river,  in  the  place  where  the  ferry  between  Bos¬ 
ton  and  Charlestown  was  then  kept,  would  be  of  great  public 
utility,  and  that  Thomas  Russell  esquire  and  others  had  peti¬ 
tioned  the  court  for  an  act  of  incorporation  to  empower  them  to 
build  said  bridge.  In  the  enacting  part  of  the  act  the  petition¬ 
ers  are  accordingly  incorporated,  and  a  toll  is  granted  and  es¬ 
tablished  for  the  purpose  of  reimbursing  the  corporation  for  the 
expenses  of  building  and  supporting  the  bridge.  This  grant  of 
toll,  taken  in  connexion  with  the  preamble,  without  doubt  au¬ 
thorized  the  corporation  to  erect  a  bridge  at  the  place  desig¬ 
nated.  And  this  certainly  is  all  that  is  expressly  granted  by  the 
act  of  incorporation.  But  the  plaintiffs’  counsel  contend,  that 
from  the  nature  of  the  grant,  there  was  an  implied  covenant  on 
the  part  of  the  government,  that  it  would  do  nothing  whereby 
any  of  the  travel  over  the  plaintiffs’  bridge  should  be  diverted  ; 
or  at  least,  that  it  should  not  be  done  without  compensation.  I 
cannot,  how’ever,  perceive  any  thing  in  the  nature  or  language 
of  the  grant,  or  in  the  existing  circumstances  at  the  time  of  the 
grant,  from  which  such  a  covenant  can  be  implied.  On  the 
contrary  all  that  appears  tends  to  repel  such  an  implication. 


139 


This  claim  of  an  exclusive  right  was  first  advanced  by  the 
plaintiffs  at  the  time  when  the  proprietors  of  West  Boston 
bridge  were  incorporated,  and  was  repelled  by  the  committee 
to  whom  the  subject  was  referred  ;  and  the  report  of  the  com¬ 
mittee  was  sanctioned  by  the  legislature.  The  additional  grant 
was  then  made  to  the  plaintiffs,  which  was  considered  by  the 
legislature  as  a  donation  for  the  encouragement  of  enterprise ; 
and  it  is  so  expressed  in  the  grant.  It  is  clear,  therefore,  that 
the  legislature  did  not  intend  to  grant  the  exclusive  privilege 
now  claimed,  and  it  is  equally  clear  that  this  was  known  by  the 
plaintiffs.  They  were  at  liberty  to  accept  or  reject  the  grant 
at  their  option,  but  when  they  accepted  it,  they  must  be  consid¬ 
ered  as  tacitly  agreeing  to  the  terms  upon  which  it  was  offered. 
If  then  there  were  any  doubts  as  to  the  construction  of  the  first 
grant,  which  however  I  cannot  perceive,  there  is  none,  as  it 
seems  to  me,  in  relation  to  the  additional  grant,  upon  which 
alone  the  plaintiffs  must  rest  their  claim  ;  the  first  grant  having 
expired  by  its  own  limitation,  before  the  erection  of  the  bridge 
complained  of.  The  intention  of  the  legislature  in  making  this 
latter  grant  is  clear  and  manifest ;  and  to  imply  a  covenant  on 
their  part  in  direct  opposition  to  their  declared  intention,  would 
be  to  make  rather  than  to  expound  a  contract. 

The  next  question  to  be  considered  is,  whether  there  is,  in 
the  grant  to  the  defendants,  any  thing  inconsistent  with  the  prior 
grants  to  the  plaintiffs  :  or  whether  the  proceedings  of  the  de¬ 
fendants,  sanctioned  as  they  are  by  the  authority  of  the  legisla¬ 
ture,  can  be  justified. 

1.  It  is  first  objected,  that  this  grant  io  the  defendants  is  in¬ 
consistent  with  the  tenth  article  of  the  declaration  of  rights  ;  and 
several  cases  have  been  cited  in  support  of  this  objection.  The 
principal  one  is  that  of  Gardner  v.  The  Village  of  JYewburgh, 
2  Johns.  Ch.  R.  162.  In  that  case  the  defendants  had  diverted 
the  water  of  a  stream  flowing  through  and  over  the  plaintiff’s 
land,  being  authorized  so  to  do  by  an  act  of  the  legislature,  in 
which  there  was  no  provision  for  compensation  to  the  plaintiff, 
and  it  was  decided  that  the  act,  for  that  defect,  was  not  binding. 
But  the  grounds  upon  which  that  case  was  decided,  wholly  fail 
in  the  case  under  consideration.  The  chancellor  says,  “  that  a 


140 


right  to  a  stream  of  water  is  as  sacred  as  a  right  to  the  soil  over 
which  it  flows.  It  is  a  part  of  the  freehold,  of  which  no  man 
can  be  disseised  but  by  lawful  judgment  of  his  peers  or  by  due 
process  of  law.”  And  on  this  principle  that  case  was  decided  ; 
a  principle  upon  which  the  present  case  certainly  cannot  be 
maintained.  For  if  the  tolls  taken  by  the  defendants  at  their 
bridge  were  a  part  of  the  plaintiffs’  freehold,  then  there  is  pro¬ 
vision  made  in  the  defendants’  charter  for  compensation  to  the 
plaintiffs,  and  they  have  no  cause  for  complaint.  But  it  cannot  be 
maintained,  that  these  tolls  w7ere  ever  a  part  of  the  plaintiffs’ 
freehold,  because  it  is  clear,  I  think,  that  they  never  had  any 
vested  property  in  them.  They  had  a  vested  property  in  their 
franchise,  but  not  in  the  tolls,  the  fruits  of  their  franchise,  until 
they  were  actually  received.  If  any  one  should  be  forcibly 
prevented  from  passing  over  the  plaintiffs’  bridge,  it  would  be 
an  injury  for  which  an  action  on  the  case  would  lie,  but  not  an 
action  of  trespass  for  taking  or  destroying  their  property.  It 
would  be  like  the  case  stated  in  the  books,  where  one  has  a 
market  and  a  toll,  and  another  is  coming  with  goods  to  the  mar¬ 
ket,  for  which,  if  sold,  toll  would  be  due,  and  a  third  person 
hinders  him  from  coming  to  the  market ;  an  action  will  lie  for 
the  lord  of  the  market,  on  account  of  the  possibility  of  damages. 
So  it  is  laid  down,  that  the  stopping  of  beasts  on  their  way  to  a 
market,  to  prevent  their  going  there,  is  an  act  directly  injurious 
to  the  owner’s  franchise  ;  but  he  had  no  property  in  the  beasts. 
It  is  said  however,  that  if  the  stopping  had  not  been  eo  intuitu , 
no  action  would  have  lain.  Tewkesbury  v.  Diston,  6  East,  457. 

So  in  the  present  case,  the  plaintiffs  had  no  vested  property 
in  the  tolls  taken  at  the  defendants’  bridge,  and  therefore  whatever 
damages  the  plaintiffs  suffered  by  the  diversion  of  travel  from 
their  bridge,  the  damages  were  consequential ;  and  it  was  clear¬ 
ly  settled  in  the  cases  of  Thurston  v.  Hancock,  12  Mass.  R. 
220,  and  Callender  v.  Marsh,  1  Pick.  418,  that  consequential 
damage  to  property  was  not  within  the  10th  article  of  the  dec¬ 
laration  of  rights.  In  the  latter  case  the  plaintiff  had  sustained 
heavy  damages  by  the  alteration  of  an  adjoining  street ;  his  use 
and  enjoyment  ol  his  house  had  thereby  been  greatly  impaired  ; 
yet,  though  that  was  a  hard  case,  the  Court  held  that  the  dam- 


141 


ages  were  consequential ;  and  that  such  damages  to  property 
did  not  amount  to  taking  it,  so  as  to  entitle  the  owner  to  com¬ 
pensation.  The  same  principle  is  applicable  to  the  present  case. 
The  plaintiffs’  franchise  has  not  been  taken  and  appropriated  to 
public  uses,  though  to  a  certain  extent  they  have  been  deprived 
of  the  beneficial  use  of  it  by  the  erection  of  the  defendants’ 
bridge.  It  is  true  a  different  doctrine  is  intimated  in  the  case 
of  Chadwick  v.  The  Proprietors  of  Haverhill  Bridge ,  as  re¬ 
ported  by  Dane,  Yol.  2,  c.  67,  art.  4,  §  3.  But  this  case  was 
not  decided  by  the  Court,  but  by  referees,  and  it  does  not  ap¬ 
pear  that  any  objection  was  made  to  their  report.  And  besides, 
provision  was  made  in  the  defendants’  charter  for  compensation 
to  the  owner  of  the  ferry,  so  that  the  only  questions  in  that  case 
were  as  to  the  amount  of  compensation,  and  by  whom  it  should 
be  ascertained. 

This  objection  therefore  cannot  be  maintained  on  authority, 
and  certainly  it  seems  to  me  it  cannot  on  principle,  unless  tolls 
and  profits  in  expectancy  can  be  considered  as  property  within 
the  meaning  of  the  constitution.  If  such  a  doctrine  can  be 
maintained,  then  it  must  be  admitted  that  the  whole  course  of 
legislation  in  this  and  other  states  has  been  erroneous.  Not  only 
the  acts  authorizing  the  erection  of  West  Boston  bridge,  the 
Canal  bridge,  and  the  Western  avenue,  are  unconstitutional  and 
void  acts  ;  but  the  acts  establishing  the  Newburyport  turnpike, 
and  several  other  turnpikes,  which  divert  travel  from  the  plain¬ 
tiffs’  bridge,  are  all  violations  of  their  constitutional  rights. 

If  the  diverting  of  travel  from  the  plaintiffs’  bridge  is  taking 
their  property,  for  which  they  are  entitled  to  compensation  by 
the  constitution,  then  any  change  of  roads  or  any  other  act, 
which  would  divert  a  single  traveller,  would  be  unconstitutional, 
except  it  was  founded  on  the  basis  of  compensation.  If  so, 
there  is  not  a  turnpike  road  in  this  or  in  any  other  state,  which 
can  be  supported  ;  for  in  none  of  the  acts  of  this  description 
has  there  been  any  provision  for  compensation  for  damages 
arising  from  diverting  the  travel  from  existing  roads.  And  it  ap¬ 
pears  to  me,  that  a  trader  or  innholder  has  as  good  a  right  to  be 
protected  in  the  enjoyment  of  the  profits  of  his  store  or  inn,  as 
the  plaintiffs  have  to  be  protected  in  the  enjoyment  of  their  tolls. 


142 


But  these  are  all  cases  of  consequential  damages,  for  which  the 
law  provides  no  compensation  ;  and  the  plaintiffs’  case  cannot, 

I  think,  be  placed  on  any  other  or  better  footing. 

The  next  question  to  be  considered  is,  whether  the  grant  to 
the  defendants  is  void,  as  being  in  contravention  of  the  constitu¬ 
tion  of  the  United  States. 

This  question  depends  altogether  on  the  construction  of  the 
plaintiffs’  grant,  and  I  have  already  anticipated  almost  every  re¬ 
mark  I  proposed  to  make  on  this  point.  Without  doubt  the 
grant  to  the  plaintiffs  was  a  valid  contract ;  and  if  the  construc¬ 
tion  given  to  it  by  the  plaintiffs’  counsel  is  the  true  construction, 
then  I  admit  that  the  obligation  of  it  is  impaired  by  the  defen¬ 
dants’  grant.  But  for  the  reasons  already  given,  1  do  not  feel 
at  liberty  to  adopt  this  construction.  For  if  I  were  rather  in¬ 
clined  to  think  it  correct,  still,  if  it  were  a  doubtful  matter,  I 
should  consider  myself  bound  to  reject  it.  Nothing  but  the 
clearest  conviction  of  my  own  mind  would  induce  me  to  declare 
the  act  of  the  legislature  unconstitutional  ;  and  although  I  do 
not  question  the  power  of  the  Court  to  make  such  a  declaration, 
yet  it  never  should  be  made  but  in  cases  which  are  clear  and 
manifest  to  all  intelligent  minds.  The  acts  of  the  legislature 
must  be  presumed  to  be  constitutional,  unless  the  contrary  can 
be  made  very  clearly  to  appear.  Now  the  construction  contend¬ 
ed  for  by  the  plaintiffs’  counsel  is  very  far  from  being  thus 
clear  ;  on  the  contrary,  I  can  find  nothing  in  the  case  to  support 
it.  I  do  not  rest  my  opinion  on  this '  point  wholly  on  the  rule, 
that  legislative  grants  or  donations  are  to  be  construed  favourably 
for  the  public  interest ;  for  upon  no  rule  of  construction  can  the 
covenant  set  up  by  the  plaintiffs  be  implied.  All  grants  are  to 
be  construed  according  to  the  intention  of  the  parties  ;  and  the 
intention  in  this  case  appears  to  me  very  clear.  When  the 
plaintiffs  first  advanced  their  present  claim,  it  was  rejected  by 
the  legislature.  This  claim  was  then  founded  on  the  first  grant, 
and  it  was  then  that  the  grant  under  which  the  plaintiffs  now 
claim  was  made.  It  was  then  known  to  the  plaintiffs,  that  the 
legislature  did  not  intend  to  grant  the  exclusive  privileges  now 
set  up  ;  and  they  must  be  presumed  to  have  accepted  the  grant 
upon  the  terms  offered.  If  these  terms  had  not  been  satisfac- 


143 


tory,  they  should  have  rejected  the  additional  grant,  and  vindi¬ 
cated  their  rights  at  that  time.  But  they  acquiesced,  and  after¬ 
wards,  when  the  legislature  approached  them  much  nearer  by 
the  grant  of  the  Canal  bridge,  they  still  acquiesced  ;  so  that  the 
intention  of  the  parties  appears  as  clearly,  as  if  it  were  ex¬ 
pressly  declared  in  the  words  of  the  grant.  The  construction 
therefore  now  contended  for  is  opposed  to  the  understanding  of 
the  parties  at  the  time  of  the  grant ;  and  it  is  unreasonable,  if 
adopted  without  qualification,  as  being  opposed  also  to  the  pub¬ 
lic  interest.  For  if  the  legislature  were  bound  for  seventy  years, 
so  that  they  could  not  provide  for  the  public  accommodation, 
without  making  compensation  to  the  plaintiffs,  the  public  might 
materially  suffer,  and  the  grant  would  partake  too  much  of  the 
nature  of  a  monopoly. 

Suppose  the  government,  at  the  time  of  the  grant,  had  a 
large  establishment  in  Charlestown,  occasioning  much  travel  be¬ 
tween  that  place  and  the  capital,  could  it  not  be  discontinued 
without  compensation  to  the  plaintiffs  ?  Or  suppose  some  of 
the  roads  leading  to  the  plaintiffs’  bridge  at  the  time  of  the 
grant,  could  afterwards  be  turned  in  another  direction,  to  the 
great  accommodation  of  the  public  travel  (as  they  in  fact  have 
been),  could  they  not  be  so  turned,  or  new  roads  opened,  without 
infringing  the  plaintiffs’  rights  ?  It  seems  to  me  extravagant  to 
hold  that  they  could  not ;  yet  this  is  the  necessary  consequence 
of  the  principle  now  contended  for.  And  this  restraint  is  to  be 
imposed  on  the  legislature,  not  from  any  words  in  the  grant 
manifesting  their  intention  thus  to  bind  themselves,  but  expressly 
against  their  declared  intention  at  the  lime  of  the  grant.  Now 
the  reverse  of  this,  I  think,  is  implied  in  the  terms  of  the  grant; 
the  public  accommodation  was  the  declared  object  of  the  grant ; 
it  may  therefore  be  implied  very  fairly,  that  the  public  were  at 
all  events  to  be  accommodated  ;  and  if,  from  the  increase  of 
population  or  business,  additional  accommodation  should  become 
necessary,  it  was  to  be  supplied. 

This  rule  of  construction  is  fully  supported  by  the  cases  of 
Prince  v.  Lewis ,  5  Barnw.  &  Cresw.  363,  and  of  Mosley  v. 
Walker,  7  Barnw.  &  Cresw.  54.  In  the  former  case  the 
plaintiff  had  a  grant  of  a  market  for  the  sale  of  fruits,  vegeta- 


144 


bles,  &c.  within  specified  limits,  and  the  complaint  was,  that  the 
defendant  had  sold  fruits  &,c.  in  the  neighbourhood  of  the  market. 
The  plaintiff  recovered  a  verdict,  but  the  court  held,  that  the 
action  would  not  lie,  it  appearing  that  there  was  not  sufficient 
accommodation  for  the  public  in  the  market,  a  part  of  the  space 
having  been  diverted  to  other  purposes.  In  the  case  of  Mos¬ 
ley  v.  Walker,  Bayley  J.  says,  “  I  take  it  to  be  implied  in  the 
terms  in  which  a  market  is  granted,  that  the  grantee,  if  he  con¬ 
fine  it  to  particular  parts  of  the  town,  shall  fix  it  in  such  parts 
as  will  yield  to  the  public  reasonable  accommodation  ;  in  order 
that  the  market,  which  was  originally  granted  for  the  benefit  of 
the  public,  as  well  as  for  the  benefit  of  the  grantee,  may  be 
effectually  held.” 

It  was  upon  this  principle  that  the  legislature  proceeded,  in 
authorizing  the  erection  of  the  defendants’  bridge,  having  deci¬ 
ded,  upon  a  full  hearing  of  all  parties  interested,  that  public 
necessity  and  convenience  required  the  additional  accommoda¬ 
tion  prayed  for ;  and  on  this  point  their  decision  is  conclusive. 

It  is  true,  the  plaintiffs  offered  to  provide  the  most  ample  ac¬ 
commodation,  by  constructing  a  circular  draw,  and  a  spur 
bridge  on  the  Boston  side  of  the  river,  to  facilitate  travel  to  and 
from  the  westerly  part  of  Boston,  and  even  to  erect  a  new 
bridge.  But  however  reasonable  this  offer  appears  to  be,  (and 
I  confess  that  to  me  it  appears  exceedingly  reasonable,)  yet  I 
take  it  the  legislature  were  the  exclusive  judges  on  this  point 
also.  They  were  not  compellable  to  enter  into  a  new  contract, 
or  to  enlarge  or  modify  their  former  grant.  They  were  to  de¬ 
termine  whether  the  public  were  or  were  not  sufficiently  ac¬ 
commodated  ;  and  if  they  were  not,  in  what  manner,  and  by 
whom,  the  additional  accommodation  should  be  supplied.  The 
Court  have  no  right  to  inquire  into  these  matters,  and  we  can¬ 
not  know  judicially  to  what  extent  the  public  were  incommoded, 
and  how  pressing  was  the  necessity  for  a  new  bridge  ;  so  that 
unless  we  determine  that  no  inconvenience,  however  great, 
would  authorize  the  legislature  to  interpose  as  they  did,  we 
cannot  impeach  their  grant  to  the  defendants  as  an  unconstitu¬ 
tional  act. 


145 


The  view  I  have  thus  taken  of  this  part  of  the  case  does 
not  appear  to  me  inconsistent  with  the  current  of  the  authorities 
cited  by  the  plaintiffs’  counsel  in  support  of  their  exclusive  claims. 
Most  of  the  cases  relate  to  ancient  rights  to  ferries  and  markets, 
founded  on  titles  by  prescription.  Now  when  a  party  can 
show  that  he  has  claimed  and  enjoyed  an  exclusive  privilege 
from  time'limmemorial,  a  grant  in  his  favour  will  be  presumed 
co-extensive  with  the  enjoyment.  These  cases  therefore  will 
furnish  no  rule  of  construction  as  to  actual  grants,  which  are  to 
be  interpreted  according  to  the  terms  of  them.  But  even  in 
some  of  the  cases  founded  on  prescriptive  titles,  the  parties  were 
not  allowed  unlimited  exclusive  privileges,  although  they  had 
been  enjoyed  from  time  immemorial.  They  were  restrained  in 
favour  of  the  public  interest  and  convenience.  In  the  case 
cited  from  Hardres,  a  new  ferry  was  set  up  at  the  distance  of 
three  quarters  of  a  mile  from  an  ancient  ferry,  and  it  was  held 
that  it  was  no  injury  to  the  lawful  rights  of  the  owner  of  the 
ancient  ferry.  In  the  case  of  Tripp  v.  Frank ,  4  T.  R.  666, 
the  plaintiff  proved  a  title  by  prescription  to  a  ferry  from  Kings¬ 
ton  upon  Hull  to  Barton,  and  that  the  defendants  had  at  different 
times  carried  over  persons  from  Kingston  upon  Hull  to  Barrow, 
two  miles  below  Barton.  A  verdict  was  returned  for  the  plain¬ 
tiff,  but  the  court  held  that  the  action  could  not  be  maintained  ; 
yet  it  is  obvious  that  the  plaintiff  had  suffered  by  the  diminu¬ 
tion  of  his  tolls  ;  but  it  was  damnum  absque  injuria.  The  court 
remark,  “  that  it  is  absurd  to  say  that  no  person  shall  be  permit¬ 
ted  to  go  to  another  place  on  the  Humber  than  that  to  which 
the  plaintiff  chooses  to  carry  him.” 

The  decisions  in  these  cases  and  in  the  cases  of  Prince  v. 
Lewis,  and  Mosley  v.  Walker,  before  referred  to,  are,  in  my 
opinion,  fully  supported  by  well  established  principles,  and  are 
strongly  opposed  to  the  whole  doctrine  on  which  the  plaintiffs 
rest  their  case. 

Upon  the  whole,  I  am  of  opinion  that  the  grant  to  the  de¬ 
fendants  is  a  valid  grant,  and  that  the  acts  and  proceedings 
under  it  are  no  infringements  of  the  plaintiffs’  rights  ;  it  having 
been  decided  by  competent  authority,  that  the  erection  of  a 
new  bridge  was  required  by  public  convenience  and  necessity. 

19 


146 


lam  aware  of  the  hardship  of  the  case  in  relation  to  some  of 
the  plaintiffs  ;  and  I  am,  I  trust,  fully  sensible  of  the  importance 
of  preserving  public  faith,  and  protecting  private  property  ;  but 
the  public  interest,  accommodation  and  convenience,  are  like¬ 
wise  to  be  guarded ;  and  we  must  respect  the  constitutional 
rights  and  powers  of  the  legislature,  preserving  also  a  reasonable 
confidence  in  their  wisdom  and  integrity.  Their  doings  are  not 
to  be  set  aside,  unless  it  can  be  made  clearly  to  appear  that  they 
have  exceeded  their  constitutional  powers. 

For  these  reasons  I  am  of  opinion  that  the  plaintiffs  are  not 
entitled  to  the  relief  prayed  for,  and  that  the  bill  should  be  dis¬ 
missed. 

Putnam  J.  It  is  admitted  that  the  act  of  March  9,  1785, 
(St.  1784,  c.  53,)  granting  to  Thomas  Russell  and  others  a 
right  to  build  a  bridge  over  Charles  river,  and  to  have  the  toll 
for  forty  years,  and  the  act  of  March  9,  1792,  (St.  1791, 
c.  62,)  extending  the  term  for  taking  toll  to  seventy  years,  are 
to  be  considered  as  contracts,  within  the  meaning  of  the  consti¬ 
tution  of  the  United  States. 

The  act  for  the  incorporation  of  the  proprietors  of  the  War¬ 
ren  bridge,  (St.  1  827,  c.  127,)  was  passed  on  the  12th  of  March 
1828. 

The  general  questions  for  consideration  are,  whether  the  last 
act  impaired  the  contracts  first  mentioned,  and  so  was  contrary 
to  the  constitution  of  the  United  States:  and  whether  it  was  an 
appropriation  of  private  property  for  public  uses  against  the  con¬ 
sent  of  the  owners  and  without  compensation,  and  so  was  con¬ 
trary  to  the  constitution  of  Massachusetts. 

I  think  that  both  questions  should  be  determined  in  the  affir¬ 
mative. 

I  propose  to  maintain,  1.  That  the  President  and  Fellows  of 
Harvard  College,  on  the  9th  of  March  1785,  w^ere  seised  in  fee 
of  the  franchise  of  the  ferry  between  Charlestown  and  Boston, 
under  the  grants  of  the  colonial  government. 

2.  That  the  college,  for  valuable  consideration  paid  by  Mr. 
Russell  and  his  associates,  consented  that  they  should  have  the 
ferry  during  the  continuance  of  their  charter. 


147 


3.  That  no  other  ferry  could  be  lawfully  erected  by  the  state, 
or  by  individuals,  so  near  to  the  old  ferry  as  to  impair  its  profits 
or  draw  away  its  custom. 

4.  That  the  plaintiffs,  having  acquired  the  right  of  the  col¬ 
lege  as  above  mentioned,  did,  in  virtue  of  the  charter  granted 
to  them  by  the  legislature,  become  seised  of  an  exclusive  fran¬ 
chise,  which  was  as  extensive  as  the  owners  of  the  ferry  had 
enjoyed,  for  the  transportation  over  Charles  river,  between  Bos¬ 
ton  and  Charlestown,  over  their  bridge  ;  so  that  a  new  ferry  or 
bridge,  which  would  have  been  a  nuisance  to  the  old  ferry,  - 
would  also  be  a  nuisance  to  the  old  bridge. 

5.  That  if  the  charter  to  the  plaintiffs,  to  erect  a  toll-bridge, 
is  to  be  construed  without  reference  to  the  ferry,  it  would  be  a 
grant  of  an  exclusive  privilege  or  right  to  have  toll  for  transpor¬ 
tation,  as  extensive  as  if  it  had  been  a  grant  of  a  ferry  :  and 
also,  that  it  contained  an  implied  covenant  or  engagement  on 
the'part  of  the  state,  not  to  grant  another  bridge  so  near  as  to 
draw  away  the  toll  from  the  old  one. 

6.  1  shall  consider  the  operation  of  the  new  bridge  upon  the 
old  one,  and  draw  the  consequences  which  1  think  the  constitu¬ 
tion  requires,  upon  the  whole  matter. 

I  extend  to  the  legislature  all  the  respect  which  should  be 
required  from  [a  member  of  the  judicial  department.  Their 
acts  are"presumed  to  have  proceeded  from  good  motives,  and  a 
sense  of  duty  imposed  by  the  constitution  and  the  laws.  But 
in  speaking  of  an  act  which  I  disapprove,  I  cannot  use  words 
of  commendation.  I  desire  it  to  be  understood  however,  that 
the  opinion  I  am  now  to  pronounce,  is  formed  with  all  proper 
deference  for  a  co-ordinate  department  of  the  government. 

1.  In  the  first  place  I  am  to  show  that  the  college  owned  the 
ferry. 

It  appears  that  in  1640  the  general  court  granted  the  ferry 
between  Boston  and  Charlestown  to  the  college.  It  was  object¬ 
ed  that  this  grant  was  made  before  the  college  was  incorpora¬ 
ted,  and  so  was  void  for  the  want  of  a  party  legally  authorized 
to  take  and  hold  as  a  grantee.  If  that  were  so,  it  would  not  di¬ 
minish  theffiberal  intention  of  the  grantor  or  donor,  and  would 
aid  in  the  construction  of  the  subsequent  grants  to  that  deserv- 


148 


edly  favoured  institution.  It  was  incorporated  in  1650.  And  in 
that  year  the  general  court  ordered,  that  the  president,  in  behalf 
and  behoof  of  the  college,  might  dispose  of  the  Charlestown  fer¬ 
ry  by  lease  or  otherwise,  making  the  best  and  most  advantage 
thereof  to  his  own  content.  In  the  same  ordinance  the  ferry- 
rent  is  spoken  of  as  belonging  to  the  college.  Four  years  after¬ 
wards  the  general  court  speak  of  “the  profit  of  the  ferry, for¬ 
merly  granted  to  the  college,  which  shall  be  continued .”  and 
in  9  Anne,  when  a  complaint  was  made  of  neglect  of  due  atten¬ 
dance  at  the  ferry,  an  act  passed,  reciting,  “  that  the  treasurer 
of  the  college  had  attended,”  and  that  “  the  profits  and  reve¬ 
nues  of  the  ferry  had  been  granted  to  Harvard  College  in  Cam¬ 
bridge,”  and  “  they  had  seen  the  lease  made  by  him  of  the  fer¬ 
ry  for  several  years  yet  to  come.”  In  this  connexion,  consider¬ 
ing  that  the  state  had  for  one  hundred  and  forty-five  years  per¬ 
mitted  the  college,  under  these  grants,  original  and  confirmatory, 
to  take  the  profits  for  their  own  use,  it  cannot  (as  it  seems  to 
me)  be  doubted,  that  the  college  was  seised  of  the  franchise  as 
of  fee  when  the  act  of  1784  was  passed. 

It  was  contended  however,  that  notwithstanding  the  grant  of 
1640,  the  general  court,  in  1644,  exempted  the  magistrates  from 
the  payment  of  ferriage,  which  would  be  an  act  implying  a  right 
to  the  franchise  itself.  But  the  exception  in  the  ordinance  car¬ 
ries  an  answer  to  the  argument.  The  magistrates  were  not  to 
pay,  11  except  at  such  ferries  as  were  appropriated  to  any  or  rent¬ 
ed  out,  and  were  out  of  the  country’s  hands.”  In  such  cases 
the  country  (or  general  court)  were  to  pay  for  them.  That  was 
exactly  the  case  in  regard  to  Charlestown  ferry.  It  was  appro¬ 
priated  to  the  use  of  the  college  ;  it  was  out  of  the  country’s 
hands,  and  in  the  hands  of  the  college.  The  magistrates  were 
to  pass  without  paying  the  ferriage  themselves,  but  the  govern¬ 
ment  were  to  pay  it  for  them. 

Upon  this  part  of  the  case  it  seems  to  me  very  clear,  that  the 
state  had  made  a  permanent  grant  of  the  franchise  to  the  college 
for  the  furtherance  of  good  learning.  It  was  a  wise  and  munifi¬ 
cent  exercise  of  their  power.  The  grants  were  accepted,  and 
the  duties  which  they  imposed  were  performed  by  the  college. 

2.  The  college,  for  valuable  consideration  paid  by  Mr.  Rus- 


149 


✓ 


sell  and  his  associates,  consented  that  they  should  have  the  ferry 
during  the  continuance  of  their  charter. 

This  fact  is  proved  by  circumstances  which  could  not  have  ta¬ 
ken  place,  unless  such  consent  had  been  given.  The  plaintiffs 
built  their  bridge  over  the  ferry- ways,  and  ever  since  they  have 
continued  to  pay  to  the  college  200 l.  a  year  for  their  right. 
The  college  discontinued  their  boats,  and  the  plaintiffs  have  taken 
the  toll  for  transportation.  The  college  have  received  the  annui¬ 
ty,  in  lieu  of  the  tolls  which  they  had  before  received  for  their 
own  use  for  nearly  a  century  and  an  half.  Surely  the  college 
could  not  maintain  an  action  against  the  proprietors  of  Charles 
river  bridge  for  a  disturbance  of  their  ferry,  because  the  jury 
would  be  bound,  from  these  facts,  to  find  that  they  had  consent¬ 
ed  that  the  plaintiffs  should  have  it  during  their  charter.  2  Wms. 
Saund.  175  b.  The  assent  of  the  college,  whether  it  be  in  the 
nature  of  a  grant,  discontinuance,  surrender,  lease  or  license  to 
use  the  franchise  of  the  ferry,  should  be  construed  to  enure  in 
the  most  beneficial  manner  for  the  plaintiffs,  who  paid  a  valuable 
consideration  for  it.  The  legislature  recognise  the  agreement  in 
the  charter  to  the  plaintiffs.  The  plaintiffs  were  grantees,  or,  at 
least,  licensees  of  the  college. 

3.  I  now  propose  to  show,  that  no  other  ferry  could  be  law¬ 
fully  erected  by  the  state,  or  by  individuals,  so  near  to  the  old 
ferry,  as  to  draw  away  its  custom. 

This  involves  the  consideration  of  the  rights  which  belong  to  a 
ferry.  How  far  on  each  side  does  the  franchise  extend  ? 

On  the  part  of  the  defendants  it  is  contended,  that  the  right  is 
confined  to  the  ferry-ways  on  each  side.  And  we  are  referred 
to  Sav.  14,  for  the  authority  to  support  that  position.  It  is  said, 
that  a  ferry  is  in  respect  of  the  landing-place,  and  not  of  the  wa¬ 
ter  ;  the  water  may  be  in  one,  the  ferry  in  another,  and  in  every 
ferry  the  land  on  both  sides  of  the  water  ought  to  be  in  the  owner 
of  the  ferry  ;  otherwise  he  cannot  land  on  the  other  part.  13 
Vin.  208,  tit.  Ferry ,  Ipswich  v.  Brown.  The  last  sentence  is 
explanatory  of  the  case.  The  matter  under  consideration  w*as 
not  how  far  on  each  side  the  franchise  extended  ;  the  point  of 
the  decision  was,  that  there  must  be  a  right  of  landing  necessari¬ 
ly  included  in  the  franchise,  or  it  would  not  come  within  the  de- 


150 


scription  of  a  ferry.  In  Com.  Dig.  Piscary,  B,  the  case  is  stat¬ 
ed  thus  : —  “  He  who  has  the  privilege  of  a  ferry,  ought  to  have 
the  soil  on  both  sides  of  the  water,  for  he  cannot  land  upon  the 
soil  of  another  without  his  assent.”  Now  that  seems  to  be  an 
obvious  truth.  There  must  be  a  right  of  landing.  It  is  not  neces¬ 
sary  however  that  the  owner  of  a  ferry  should  have  a  fee  simple 
in  the  soil.  A  permission  or  license  of  the  owner  to  land  would  be 
sufficient.  The  King  v.  JVicholson,  12  East,  333.*  But  there 
is  no  legal  ground  to  maintain  that  the  extent  of  the  franchise  is 
to  be  limited  to  the  ferry-ways. 

The  law  was  clearly  held  otherwise  in  England  for  centuries 
before  the  settlement  of  this  country.  It  was  brought  hither  by 
our  fathers,  and  has  been  recognised  by  the  eminent  jurists  of 
our  own  country.  I  deem  it  important  to  demonstrate  this  part 
of  the  case,  and  shall  therefore  make  free  citations  from  the 
books  to  prove  it. 

It  is  said  by  Paston  J.  in  22  H.  6,  1  4,  pi.  23,  that  “  if  I  have 
an  ancient  ferry  in  a  ville,  and  another  sets  up  another  ferry 
upon  the  same  river  near  to  my  ferry,  so  that  the  profits  of  my 
ferry  are  impaired,  I  shall  have  an  action  of  the  case  against 
him.”  And  the  reason  is  given  by  JVewton — “  for  you  are 
bound  to  sustain  the  ferry,  and  serve  and  repair  it  for  the  use 
of  the  people,  under  penalty  of  grievous  amercement.”  S.  C. 
16  Yin.  30,  tit.  JVusance,  H.  pi.  25  •,  S.  C.  2  Roll.  Abr.  140, 
tit.  JVusance,  pi.  4  ;  where  the  second  ferry  is  called  a  nui¬ 
sance  to  the  first. 

Bac.  Prerogative,  F,  1.  “  If  the  king  grants  a  fair  or  mar¬ 

ket  to  one  person  and  afterwards  grants  another  to  another  per¬ 
son  to  the  prejudice  of  the  first,  the  second  grant  is  void.”  The 
king  will  permit  the  party  aggrieved,  as  a  matter  of  right,  to  use 

*  Since  this  opinion  was  delivered,  I  have  seen  the  case  of  Peter  v. 
Kendall  et  al.  6  Barnvv.  &.  Cresw.  703,  where  there  was  a  demise  of  a  fer¬ 
ry  by  parol,  at  an  annual  rent,  and  afterward  an  agreement  by  parol,  that 
the  tenant  should  become  servant  to  the  lessor  and  should  account 
for  the  tolls  ;  and  it  was  held,  that  there  was  a  surrender  of  the  tenant’s 
interest  by  operation  of  law.  And  the  doctrine  that  the  owner  of  the 
ferry  must  own  the  soil  on  each  side,  is  expressly  denied.  The  court 
held  it  sufficient  if  he  had  a  right  to  use  the  land  for  the  purposes  of  a 
ferry. 


151 


his  name  for  the  repeal  of  the  second  grant,  which  was  prejudicial 
to  the  first.  Sir  Oliver  Butler's  Case,  2  Ventr.  344  •,  S.  C.  3  Lev. 
221  ;  Brewster  v.  Weld,  6  Mod.  229.  Same  law  in  3  Bl.  Com. 
218.  That  distinguished  commentator  expresses  himself  thus  ; 
— “  If  a  ferry  is  erected  on  a  river,  so  near  to  another  ancient 
ferry  as  to  draw  away  its  custom,  it  is  a  nuisance  to  the  own¬ 
er  of  the  old  one.”  Same  law,  Fitzh.  N.  B.  184,  note  a  ;  Bull. 
N.  P.  76  ;  S'.  P.  Lord  Hale’s  Treatise,  De  Portibus  Maris, 
c.  5,  p.  59. 

Blissett  v.  Hart,  Willes,  512,  was  an  action  of  the  case  by 
the  owner  of  an  ancient  ferry,  against  one  who  had  set  up  an¬ 
other  near.  It  is  there  laid  down,  that  the  owner  may  have  his 
remedy  for  the  injury  by  an  assise  of  nuisance,  or  an  action 
upon  the  case.  It  is  a  franchise  which  cannot  be  erected  with¬ 
out  license  from  the  crown,  and  when  one  is  erected,  another 
cannot  be  erected  without  a  writ  of  ad  quod  damnum. 

16  Vin.  26,  tit.  JYusance,  G,  pi.  2.  But  if  such  grant  should 
be  made  without  that  clause,  and  it  should  be  found  to  the  dam¬ 
age  of  the  king  or  of  the  subject,  it  shall  be  avoided. 

We  have  no  process  of  ad  quod  damnum,  but  it  is  believed 
that  the  constitutional  provisions  and  the  principles  of  the  com¬ 
mon  law,  afford  protection  to  the  property  of  the  people  here, 
equivalent  to  that  which  is  given  by  the  writ  of  ad  quod  dam¬ 
num  in  England. 

A  ferry,  says  Mr.  Dane,  vol.  2,  p.  683,  “  forms  a  part  of  a 
public  passage  or  highway,  wherever  rivers  or  waters  are  to  be 
passed  in  boats.  They  therefore,  who  have  a  ferry,  must  be 
bound  in  a  proper  manner  to  keep  it  up  ;  to  have  suitable  ferry- 
ways,  boats  and  attendants,  at  all  seasonable  times.  The  natu¬ 
ral  consequence  of  this  duly,  enjoined  by  law,  is,  that  the 
keepers  of  the  ferry  must  have  a  reasonable  compensation  for 
their  time  and  expenses,  fixed  by  law,  and  legally  secured  to 
them.  In  this  way,  a  ferry  becomes  property,  an  incorporeal 
hereditament,  the  owners  of  which,  for  the  public  convenience, 
being  obliged  by  law  to  perform  certain  public  services,  must, 
as  a  reasonable  equivalent,  be  protected  in  this  property.” 

The  owner  may  prove  his  title  by  grant,  or  by  prescription, 
which  supposes  such  a  grant  to  be  made. 


152 


The  case  of  Chadwick  v.  Proprietors  of  Haverhill  Bridge 
was  settled  upon  these  principles.  It  was  decided  in  this  Court 
in  1798.  2  Dane,  680.  The  plaintiff  declared  in  an  action 
upon  the  case  against  the  defendants,  for  destroying  his  ferry 
by  the  building  of  a  bridge  near  to  and  within  forty  rods  of  his 
ferry.  The  defendants  justified  under  an  act  of  the  legislature 
authorizing  them  to  build  the  bridge  ;  and  this  Court  was  of 
opinion,  “  that  the  act  did  not,  and  perhaps  could  not,  deprive 
the  plaintiff  of  his  common  law  right  to  try  his  title  and  dama¬ 
ges  by  a  jury  in  a  civil  action.  How  could  the  Court  have  oth¬ 
erwise  determined,  without  disregarding  the  provisions  of  the 
constitution,  which  declares  that  the  trial  by  jury  shall  be  held 
sacred  ? 

I  have  examined  the  record  and  papers  in  that  case.  The 
declaration  was  drawn  by  Parsons.  The  original  remains  on 
file  in  his  hand-writing.  I  mention  this  circumstance  to  show 
that  it  was  a  case  which  received  his  particular  attention.  It 
states,  “  that  the  plaintiff,  on  the  1st  of  August  1794,  and  long 
before,  was  and  ever  since  has  been,  and  now  is  seised  in  his 
own  demesne  as  of  fee  and  right,  of  and  in  a  certain  ferry 
over  Merriinac  river,  known  by  the  name  of  Chadwick’s 
Ferry,  for  the  transportation  in  boats,  of  persons,  carriages  and 
beasts  from  Bradford  to  Haverhill,  and  from  Haverhill  to  Brad¬ 
ford,  with  a  right  to  receive  toll  for  the  said  transportation  ;  yet 
the  proprietors,  not  ignorant,  &c.  but  intending  to  injure  the 
said  Chadwick  in  the  enjoyment  of  his  said  franchise  and 
deprive  him  of  the  toll  and  profits  accruing  therefrom,  on  the 
1st  of  August  aforesaid,  erected  a  bridge  over  the  said  river, 
near  to  and  within  forty  rods  of  the  said  Chadwick’s  ferry 
aforesaid,  extending  from  Bradford  to  Haverhill,  from  the 
banks  of  said  river  in  Bradford  aforesaid,  and  over  the  said 
river  to  the  banks  thereof  in  Haverhill,  for  the  passage  of  any 
persons,  their  carriages  and  beasts  from  Bradford  to  Haverhill, 
and  from  Haverhill  to  Bradford,  for  a  toll  to  be  paid  to  the 
said  proprietors  for  such  passage,  and  the  said  bridge  have  kept 
up  from  that  time  to  the  present  time,  and  during  the  same 
time  have  permitted  sundry  persons,  with  their  carriages  and 
beasts,  to  pass  the  same  bridge,  and  have  received  divers  sums 


153 


of  money  as  toll  therefor,  to  the  great  prejudice  and  detri¬ 
ment  of  the  said  Chadwick,  and  the  said  Chadwick  hath  there¬ 
by  lost,  during  the  time  aforesaid,  all  toll  and  profit  arising  from 
his  said  ferry.” 

The  plaintiff  in  that  case  proved  a  prescriptive  right  to  the 
ferry.  The  depositions  are  on  file.  In  June  term  1797  the 
action  was  referred  specially.  Mr.  Dane  (the  venerable  author 
of  the  Abridgment  of  American  Law,  who  was  then  in  full 
practice  at  the  Essex  bar)  was  the  chairman  of  the  referees. 
The  rule  was  drawn  up  by  Sullivan  (who  was  attorney  general 
and  of  counsel  for  the  proprietors),  and  amended  by  Parsons, 
and  signed  by  both,  giving  the  referees  authority  to  find  a  sum  in 
gross  for  the  damages,  if  they  should  find  that  the  plaintiff  had 
a  right  to  recover.  The  award,  dated  November  14,  1798,  is 
in  the  hand-writing  of  Mr.  Dane,  in  which  the  referees  say  that 
they,  “  having  found  that  the  said  Chadwick  had  a  right  to  re¬ 
cover  damages,  do  report  that  he  recover  1110  dollars,  being 
a  sum  in  gross,”  &c.  Chief  Justice  Francis  Dana  was  present 
with  the  whole  court,  when  the  report  was  accepted.  His  as¬ 
sociates  were  Paine,  Bradbury,  Cushing  and  Dawes. 

The  act  of  incorporation  of  the  proprietors  of  Haverhill 
bridge,  passed  March  22,  1793,  (Special  Laws,  vol.  1 ,  p.  437,) 
provided  that  within  one  year  after  the  bridge  should  be  open¬ 
ed  for  passengers,  the  proprietors  should  pay  Samuel  Chadwick 
such  sum  or  sums  of  money  as  should  be  awarded  to  him  by 
three  indifferent  men  mutually  chosen  by  the  parties,  as  a 
full  compensation  for  any  injury  sustained  by  him  by  the  erect¬ 
ing  said  bridge  ;  and  in  case  of  the  refusal  of  either  of  the 
parties  to  appoint  such  referees,  the  judges  of  the  Court  of 
Common  Pleas  for  the  county  of  Essex  should  ascertain  and 
adjudge  said  compensation,  after  due  notice  to  all  concerned. 
But  Chadwick  did  not  choose  to  abide  by  that  mode  of  com¬ 
pensation,  and  commenced  his  action  at  law ;  and  the  Court 
held,  that  the  act  of  the  legislature  did  not  take  away  his  right 
to  a  trial  by  jury. 

I  consider  this  to  be  a  case  of  great  importance,  not¬ 
withstanding  the  judgment  was  rendered  upon  a  report  of 
referees.  It  came  under  the  consideration  of  a  court  very 
20 


154 


learned,  especially  in  the  common  law.  The  most  eminent 
counsel  were  engaged  on  each  side.  The  defendants  were  a 
powerful  corporation,  claiming,  but  finding  no  shelter,  under  an 
aet  of  the  legislature,  which  had  taken  the  property  of  the  plain¬ 
tiff  for  public  uses,  without  providing  for  him  a  constitutional 
trial  by  jury.  I  do  not  question  the  right  of  parties  to  submit 
the  law  as  well  as  the  fact  to  arbitrators,  who,  being  judges 
of  the  paities’  own  choosing,  have  power  to  decide  definitively. 
But  this  W3S  no  ordinary  case  or  arbitration.  It  must  have 
been  broken  before  the  Court,  or  they  would  not  have  express¬ 
ed  the  opinion  which  they  did.  It  may  not,  under  the  circum¬ 
stances,  be  considered  as  binding  upon  the  Court.  But  if  it 
is  considered  merely  as  the  award  of  the  American  Coke,  upon 
a  question  of  legal  right,  it  is  to  be  treated  with  great  respect. 
Mr.  Dane  ( ubi  sup.),  says  that  they  reported  for  the  plaintiff, 
on  the  ground  that  he  had  such  a  right  in  the  ferry  as  he  had 
declared  for. 

I  hold  it  upon  the  authorities  of  the  law  to  be  clear,  that  the 
franchise  of  a  ferry  is  not  confined  to  the  ferry-ways,  but  that 
it  has  an  exclusive  right  of  transportation  of  such  extent  on 
each  side,  as  to  prevent  near  and  injurious  competition.  If, 
therefore,  the  Charlestown  ferry  had  been  continued,  and  the 
owners  of  it  had  sued  the  proprietors  of  Warren  bridge,  the 
case  would  be  like  the  case  of  Chadwick  v.  Proprietors  of 
Haverhill  Bridge,  with  this  exception,  that  Chadwick’s  ferry 
was  not  so  near  to  Haverhill  bridge,  as  the  Warren  bridge  is  to 
the  Charlestown  ferry-ways.  If  a  new  ferry  had  been  set  up 
where  the  Warren  bridge  is,  it  would  in  legal  contemplation  be 
clearly  a  nuisance  to  the  old  ferry. 

4.  I  proceed  to  show  that  the  plaintiffs,  having  acquired  the 
rights  of  the  college  as  aforesaid,  did,  in  virtue  of  the  charter 
made  to  them,  become  seised  of  a  franchise  to  have  the  toll 
for  transportation  over  their  bridge,  as  extensive  as  the  college 
had  enjoyed  for  the  transportation  in  boats. 

This  contract  must  be  construed  according  to  the  intent  of 
the  parties,  “  as  it  may  be  inferred  from  the  whole  expressions 
and  the  nature  of  the  occasion  to  which  it  is  applied.”  1 
Evans’s  Poth.  59,  in  notis. 


155 


The  act  or  contract  is  very  inartificially  drawn.  It  contains 
no  express  enacting  clause  authorizing  Mr.  Russell  and  his  as¬ 
sociates  to  build  the  bridge,  and  their  right  to  do  so  is  to  be  in¬ 
ferred  only  by  implication.  And  if  the  doctrine  is  correct,  that 
nothing  is  to  be  taken  by  implication  in  the  grants  of  the  state, 
as  it  has  been  said  in  regard  to  the  grants  of  the  king,  the  pro¬ 
prietors  could  not  defend  themselves  against  an  indictment  for 
nuisance. 

Thus  in  a  case  cited  by  the  defendants  from  Davies  157, 
it  was  agreed,  that  where  the  king  granted  to  Sir  Randall 
M‘Donell  all  the  territory  adjoining  to  the  river  Banne,  and  all 
fisheries  within  that  territory,  “  exceptis  tribus  partibus  piscarice 
de  Banne,”  that  the  fourth  part  of  this  fishery  should  not  pass 
by  the  grant ;  for  (say  the  court)  “  the  king's  grant  shall  pass 
nothing  by  implication .” 

My  brethren,  1  believe,  are  not  prepared  to  adopt  that  posi¬ 
tion.  It  must  follow  from  the  rejection  of  it,  that  the  king’s 
grants,  or  grants  of  the  state,  are  to  be  construed  with  all  such 
implications  as  are  necessary  to  carry  their  manifest  intent  into 
effect. 

I  hold,  that  even  in  the  construction  of  the  king’s  grant,  the 
rule,  id  cerium  est  quod  cerium  reddi  potest,  applies  as  much  as 
it  does  in  the  grants  of  individuals.  And  that  where  the  king 
grants  for  a  valuable  consideration,  it  is  to  be  construed  more 
favourably  for  the  patentee,  than  for  the  king.  I  suppose  it  will 
not  be  contended  that  the  grants  of  the  legislature  are  to  be 
construed  more  favourably  for  the  grantor,  than  the  grants  of 
the  king  would  be. 

In  The  Lord  Chandos's  Case,  6  Co.  55,  it  was  held,  that 
although  the  king  hath  mistaken  the  law  or  the  fact,  in  case  the 
same  were  no  part  of  the  consideration,  the  grant  shall  not  be 
avoided,  because  the  party  was  in  no  fault.  By  a  grant  of  the 
manor,  without  a  word  of  the  reversion,  the  reversion  shall 
pass,  although  the  king  grants  it  as  in  possession. 

Again,  in  Whistler's  Case,  10  Co.  65;  “  such  construction 
as  will  make  the  true  intention  of  the  king  expressed  in  his 
charter  take  effect,  is  for  the  king’s  honour,  and  stands  with  the 
rules  of  law.” 


156 


17  Vin.  ]  53,  tit.  Prerogative ,  O.  c,  pi.  1.  If  two  construc¬ 
tions  be  made,  one  to  make  the  grant  void,  and  the  other  good, 
then  for  the  honour  of  the  king  and  the  benefit  of  the  subject, 
such  construction  shall  be  made  that  the  grant  shall  be  good. 

Again,  in  JVl olyn’s  Case,  6  Co.  6,  the  rule  is  mentioned,  “  to 
construe  the  king’s  grant  beneficially  for  his  honour  and  the  re¬ 
lief  of  the  subject,  and  not  to  make  any  strict  or  literal  con¬ 
struction  in  subversion  of  such  grants.” 

Vin.  ( ubi  sup.)  pi.  4,  referring  to  2  Inst.  496.  The  king's 
patents  for  liberties,  lands,  &fc.  shall  have  no  strict  or  narrow 
interpretation  for  the  overthrowing  of  them,  but  secundum  ea- 
rundem  plenitudinem  judicentur,  viz.  to  have  a  liberal  and 
favourable  construction  for  the  making  of  them  available  in  law, 
usque  ad  plenitudinem,  for  the  honour  of  the  king,  viz.  as  fully 
and  beneficially  as  the  law  was  taken  at  the  time  when  they  were 
made. 

The  parliament  of  England,  sensible  of  the  great  oppression 
which  would  fall  upon  the  subjects,  by  a  narrow  construction  of 
the  grants  of  the  sovereign,  in  the  time  of  Queen  Elizabeth 
(43  Eliz.  1,)  enacted,  “  that  letters  patents  of  all  grants  made 
by  the  queen,  should  be  expounded  most  beneficially  for  the  pa¬ 
tentees,  any  mis-naming,  mis-recital,  or  non-recital  notwithstand¬ 
ing.” 

Vin.  (ubi  sup.)  pi.  13.  “  The  construction  made  on  grants 

of  the  crown  is,  that  where  the  intention  is  plain,  the  words 
are  taken  most  favourably  for  the  subject.” 

Com.  Dig.  Grant,  G,  5.  “If  the  king’s  grant  refers  to  an¬ 
other  thing  which  is  certain,  it  is  sufficient ;  for  id  certum  est, 
&lc.  though  the  reference  be  to  a  matter  in  pais." 

In  Plowd.  13.  “If  the  king  grants  all  such  lands  as  came 
to  him  by  attainder,  this  grant  comprehends  no  certainty ;  yet 
it  was  held  good,  because  by  circumstances  it  may  be  reduced  to 
a  certainty."  And  it  is  said  that  the  “  same  law  is  in  cases  of 
common  persons.”  So  in  p.  12.  “  If  the  king  grants  over 

certain  lands  which  came  to  his  hands  before,  and  further  grants 
to  the  grantee  such  liberties,  privileges,  Sic.  as  he  had  who  was 
last  seised  of  the  lands,  where  the  king  knows  not  the  certainty 
of  the  liberties  and  privileges,  yet  this  grant  is  good  enough, 


157 


and  the  patentee  may  inquire  what  liberties  and  privileges  the 
other  had  before,  and  the  same  he  shall  use  and  enjoy,  and  yet 
they  were  not  certainly  expressed,  but  were  incertain  at  the 
time  of  the  grant :  But  for  as  much  as  this  incertainty  may  be 
reduced  to  a  certainty  by  inquiry,  or  other  circumstances,  the 
grant  is  good.” 

Bac.  Abr.  Prerog.  F,  2.  “  If  the  king’s  grant  may  be  taken 
to  two  intents,  one  of  which  may  be  good  and  the  other  not, 
it  shall  be  construed  to  such  intent  that  the  grant  may  take 
effect.” 

Bac.  Prerog.  F,  2.  “  When  the  king’s  grants  are  upon  a 

valuable  consideration,  they  shall  be  construed  favourably  for  the 
patentee  for  the  honour  of  the  king.” 

17  Vin.  152,  Prerog.  M  c,  pi.  11.  The  service  done  to 
the  realm  is  as  good  a  consideration  as  if  500Z.  had  been  given 
for  the  land.  Per  the  Lord  Chancellor. 

I  will  now  proceed  to  inquire  as  to  the  facts  and  circumstan¬ 
ces  which  attended  the  making  of  the  grant  or  act  of  1784. 

The  only  communication  with  Boston  was  by  the  Charles¬ 
town  and  the  Winnesimmet  ferries,  excepting  the  communication 
by  Roxbury.  Mr.  Russell  and  his  associates,  in  their  petition 
to  the  legislature,  explain  their  expectations  if  their  petition 
should  be  granted.  After  speaking  of  the  inconveniences  of 
the  transportation  in  boats,  they  say,  that  it  had  long  been  the 
wish  of  many  to  see  a  bridge  erected  across  Charles  river,  in 
the  place  where  the  ferry  between  Boston  and  Charlestown  was 
then  kept.  They  take  into  consideration  the  great  advantage 
which  will  arise,  not  only  to  the  towns  of  Boston  and  Charles¬ 
town,  but  to  all  the  country  “  to  the  westward ,  northward,  and 
eastward,  by  the  accomplishment  of  so  desirable  an  object.” 
And  they  were  willing,  if  suitable  encouragement  should  be 
given  to  them,  to  undertake  the  work  at  their  own  cost  and 
charge,  though  the  expense  would  be  great.  In  other  words, 
they  propose  to  accommodate  all  who  come  from  the  west,  from 
the  north  and  from  the  east,  with  a  bridge,  being  satisfied  that 
the  toll  which  such  a  travel  would  pay,  would  indemnify  them 
for  the  hazard  and  expense.  They  expressly  refer  to  the  ferry, 
and  propose  to  put  their  bridge  in  its  place,  for  the  public  ac- 


158 


commodation,  as  well  as  for  their  own  emolument.  The  legis¬ 
lature  granted  their  petition.  The  act  is  an  echo  of  it.  It  is 
entitled,  “  An  act  for  incorporating  certain  persons  for  the  pur¬ 
pose  of  building  a  bridge  over  Charles  river,  between  Boston 
and  Charlestown,  and  supporting  the  same  during  the  term  of 
forty  years.”  Then  they  recite,  that  whereas  the  erecting  of  a 
bridge  over  Charles  river,  in  the  place  where  th e  ferry  was  then 
kept,  &c.  They  proceed  to  make  the  petitioners  a  corporation 
and  to  grant  a  toll  for  the  sole  benefit  of  the  proprietors  of  the 
bridge  for  forty  years,  commencing  on  the  day  when  the  bridge 
should  be  opened  for  passengers. 

Various  rights  and  interests  were  to  be  provided  for,  before 
the  project  of  the  petitioners  could  be  carried  into  effect.  The 
President  and  Fellows  of  Harvard  College  were  to  be  secured 
in  the  payment  of  the  annuity  for  their  right  to  the  ferry,  during 
the  charter.  The  license  of  the  government  to  obstruct,  in 
some  degree,  the  navigable  waters,  by  the  piers  of  the  bridge, 
was  to  be  obtained.  The  public  accommodation  was  to  be 
provided  for  by  a  bridge  of  such  ample  dimensions  as  the  legisla¬ 
ture  should  prescribe.  And  lastly,  the  petitioners  were  to  be 
remunerated  by  the  toll  for  their  great  expenditure  of  money 
and  labour  upon  a  then  untried  and  hazardous  enterprise.  And 
besides,  the  college  was  to  be  exempted  from  the  duty  of  keep¬ 
ing  up  their  boats,  while  the  bridge  should  be  passable.  For 
they  could  not  lay  down,  any  more  than  they  could  set  up  a 
ferry,  without  the  consent  of  the  legislature.  Paine  v.  Par¬ 
tridge,  1  Salk.  12. 

Now  it  is  clear  to  my  mind,  that  all  these  various  rights  and 
interests  were  intended  to  be  provided  for  by  the  act  of  1784. 
The  state  cannot  be  permitted  to  say,  against  the  necessary 
inference  of  that  act,  that  the  petitioners  were  not  licensed  to 
huild  the  bridge.  They  surely  are  not  liable  for  a  nuisance  in 
the  navigable  waters  of  Charles  river,  nor  could  any  indictment 
be  maintained  against  the  college  for  discontinuing  their  ferry 
under  the  agreement  with  the  proprietors  of  the  bridge. 
These  were  the  expected  consequences  of  the  building  of 
the  bridge.  And  as  little  was  it  apprehended  that  the  fran¬ 
chise  in  the  bridge  should  be  of  less  extent  than  the  franchise 


159 


of  the  ferry,  to  which  all  the  parties  concerned  in  the  act  re¬ 
ferred. 

This  grant  was  for  a  valuable  consideration,  rendered  to  the 
public,  and  (as  we  have  seen)  is  to  be  construed  favourably  for 
the  grantee. 

If  the  grant  had  been  made  directly  to  the  college,  could  it 
be  supposed  that  their  franchise,  or  right  to  toll,  had  been  les¬ 
sened,  because  the  mode  of  transportation  had  been  changed  ? 
Let  us  consider  for  a  moment  the  nature  of  these  franchises. 
They  are  included  in  the  species  of  tolls,  and  among  many 
(of  which  Lord  Coke  speaks  in  Webb's  Case,  8  Co.  92,)  are 
'pontage  and  passage.  “  The  latter,”  he  says,  “  is  properly  a 
ferry  for  the  passing  of  men  and  cattle  over  a  water,  for  which 
the  owner  has  a  toll ;  the  former  is  a  toll  for  passage  or  carriage 
over  a  bridge.”  S.  P.  13  H.  4,  14,  and  in  the  index  to  that  vol. 
verb.  Grant ;  17  Yin.  Abr.  S8,  Prerogative,  M,  b,  pi.  18,  19  ; 
i ieddy  v.  Welhouse,  Moore,  474  ;  Smith  v.  Sheperd,  ibid.  574. 

Now  I  think  it  was  intended  by  all  the  parties  named  or  con¬ 
cerned  in  the  act  of  1784,  that  the  proprietors  of  the  bridge 
should  succeed  the  owners  of  the  ferry,  in  the  toll  for  the  trans¬ 
portation  of  all  which  should  come  from  the  east,  from  the 
west  and  from  the  north  to  Charlestown,  and  go  from  thence 
to  Boston,  and  back  again.  In  other  words,  pontage  was  sub¬ 
stituted  for  passage  (or  ferriage,  as  it  is  more  frequently  called), 
without  any  diminution  of  the  extent  of  the  franchise.  It 
would  seem  therefore  to  follow,  that  a  new  ferry  or  bridge  which 
would  have  been  a  nuisance  to  the  old  ferry,  would  also  be  a 
nuisance  to  the  bridge,  which  took  the  place  of  the  old  ferry. 

I  have  dwelt  much  upon  this  part  of  the  case,  because  I 
think  it  has  a  strong  tendency  to  show  what  were  the  intentions 
of  all  parties  concerned  or  interested  in  the  original  contract  or 
act  of  1 784. 

It  has  been  contended,  that  the  right  of  the  college  in  the 
ferry  was  surrendered  to  the  state,  and  that  it  merged  in  the 
state,  so  that  the  grant  of  the  charter  for  the  bridge  should  be 
considered  as  altogether  independent  of  the  ferry,  which  had 
thus  become  extinct. 


160 


I  have  two  answers  to  that  argument.  In  the  first  place,  that 
the  right  to  the  ferry  did  not  merge  in  the  state  ;  and  secondly, 
if  it  did,  it  does  not  affect  the  question,  because  a  grant  may 
refer  to  a  thing,  or  to  rights,  privileges  or  liberties,  which  once 
existed,  by  inquiries,  even  in  pais,  just  as  well  as  it  may  to 
things,  rights,  &ic.  in  existence. 

As  to  the  first  point,  it  would  seem  to  be  a  violent  construc¬ 
tion  of  the  act  of  1781,  and  of  the  circumstances  which  ac¬ 
companied  it,  to  make  it  a  surrender  of  the  ferry  to  the  state. 
I  admit  that  it  was  surrendered  either  to  the  state  or  to  the  pro¬ 
prietors  of  the  bridge  during  its  charter.  If  to  the  state,  it 
was  without  consideration  ;  if  to  the  proprietors  of  the  bridge, 
it  was  upon  valuable  consideration.  Now  I  cannot  but  think  it 
is  more  consonant  to  law  and  reason,  that  the  parly  which  paid 
the  value,  should  have  the  right,  than  the  party  which  paid 
nothing  at  all. 

Suppose  the  ice  and  the  tides  should  have  carried  away  the 
bridge  the  next  winter  after  it  was  completed  ;  the  proprietors 
would  have  had  a  right  to  continue  the  ferry  during  their  term, 
and  take  the  tolls,  for  they  were  liable  to  pay  the  annuity  to  the 
college  during  that  time.  And  if  at  the  end  of  the  term,  there 
should  be  no  bridge  remaining,  the  college  would  have  the  ferry, 
without  a  new  grant  from  the  state.  The  college  had  in  effect 
surrendered  or  leased  it  to  the  proprietors  during  the  charter  of 
the  bridge.  They  have  never  parted  with  their  reversionary 
interest. 

But  secondly,  if  it  did  merge  in  the  state,  it  would  not  affect 
my  argument.  It  once  existed,  and  as  a  matter  of  reference, 
to  explain  the  meaning  of  the  contract  of  1785,  it  would  have 
been  just  as  good  if  it  were  merged,  as  if  it  were  leased  only 
for  a  term  of  years  to  come. 

For  example.  On  the  23d  of  November  1637,  the  gene¬ 
ral  court  “  leased  to  Edward  Converse  the  ferry  between  Bos¬ 
ton  and  Charlestown,  to  have  the  sole  transporting  of  passen¬ 
gers  and  cattle  from  one  sice  to  the  other  for  three  years.” 
Now  suppose  the  state,  after  the  expiration  of  the  lease,  should 
have  granted  a  toll  bridge  to  be  placed  where  the  ferry  was  kept 
by  Edward  Converse,  while  he  was  lessee  of  the  state,  with  all 


161 


the  privileges  in  that  lease  contained  ;  I  think  that  lease  would 
be  taken  into  consideration,  in  ascertaining  the  privileges  granted 
to  the  proprietors  of  the  bridge,  notwithstanding  it  had  expired 
according  to  its  own  limitation. 

It  is  said  by  Popham  C.  J.,  Cro.  Eliz.  591,  that  where 
one  hath  a  grant  by  prescription,  whereto  a  toll  hath  usually 
been  paid,  which  is  afterwards  forfeited  to  the  king,  and  the 
king  grants  it  cum  omnibus  libertatibus  ad  feriam  spectantibus , 
by  this  grant  the  grantee  shall  have  the  toll,  for  toll  was  formerly 
belonging  thereto  ;  and  therefore  the  king  did  not  grant  a  new 
fair,  but  the  ancient  one. 

In  the  case  of  the  Abbot  of  Strata  Marcella ,  9  Co.  30 ; 
“  When  a  charter  has  general  reference  to  other  charters,  it  is 
as  much  in  law  as  if  all  the  charters  had  been  recited.” 

5.  But  I  maintain,  that  if  the  charter  to  the  plaintiffs  to  build 
a  toll  bridge,  is  to  be  construed  without  reference  to  the  ferry, 
it  contains  a  grant  of  an  exclusive  privilege  or  right  to  have  toll 
for  transportation,  as  extensive  as  if  it  had  been  a  grant  of  a 
ferry  ;  and  that  it  contained  an  implied  covenant  or  undertak¬ 
ing,  on  the  part  of  the  state,  not  to  grant  another  bridge  so  near 
as  to  draw  away  the  custom  from  the  old  one. 

I  maintain  that  the  franchise  in  a  toll  bridge  is  analogous  to 
the  franchise  of  a  ferry,  and  is  no  more  to  be  confined  to  the 
width  of  the  bridge,  than  a  ferry  is  to  be  confined  to  its  ways. 
I  ask  for  a  reason,  why  a  different  legal  rule  is  to  be  applied  to 
the  franchise  in  a  toll  bridge,  from  that  which  we  have  seen  is 
applied  to  a  franchise  in  a  ferry.  The  franchise  consists  in  the 
emoluments  to  be  derived  from  transportation.  It  is  not  enough 
to  say  that  the  one  is  by  a  bridge  and  the  other  is  by  a  ferry. 
What  reason  can  be  given,  why  a  man’s  property  in  a  ferry 
should  be  protected  from  near  and  injurious  competition,  and 
his  property  in  a  bridge  should  be  exposed  to  the  nearest  in¬ 
vader  ?  I  have  heard  none,  and  I  think  my  learned  brethren 
would  have  given  one  if  there  were  a  good  one  to  give.  They 
are  both  publici  juris ,  and  derivable  from  the  grants  of  the 
state.  Both  are  grounded  upon  tolls,  for  indemnity  and  income 
to  the  owners.  The  expenses  of  the  bridge,  and  its  accom¬ 
modation  of  the  public,  are  immensely  greater  than  those  of 

21 


162 


the  ferry.  They  are  protected  precisely  by  the  same  legal 
principles.  Endem  est  ratio,  eadem  est  lex. 

In  Chadwick's  Case,  the  bridge  was  just  as  much  treated  as 
a  nuisance  to  his  ferry,  as  if  a  new  ferry  had  been  set  up  where 
the  bridge  was  placed.  In  its  effect  it  was  infinitely  a  greater 
injury.  It  destroyed  the  ferry.  Why  is  it  that  a  new  bridge 
or  new  ferry  is  a  nuisance  to  an  old  one  ?  Because  it  diverts 
the  travel  and  transportation,  and  so  deprives  the  ancient  bridge 
or  ferry  of  the  toll  which  it  would  otherwise  have  received. 

The  defendants  must  maintain,  that  the  extent  of  the  fran¬ 
chise  is  confined  to  the  width  of  the  bridge.  My  learned 
brethren,  from  whom  I  am  compelled  to  dissent,  must  come  to 
that  conclusion.  I  have  demonstrated,  if  any  proposition  can 
be  demonstrated  from  the  books  of  the  law,  that  this  limited 
construction  is  not  to  be  applied  to  a  ferry.  I  must  admit, 
however,  that  if  the  extent  of  the  franchise  is  so  limited  to  the 
width  of  the  bridge ;  if  that  was  the  redl  intent  and  meaning  of 
the  legislature  and  of  the  grantees;  it  would  follow  that  the 
plaintiffs  have  no  claim  ;  their  property  has  not  been  taken,  the 
constitution  has  not  been  violated,  and  all  the  general  principles 
to  which  I  have  adverted  are  misapplied.  I  believe  my  learned 
brethren  who  would  maintain  that  the  right  is  confined  to  the 
width  of  the  bridge,  do  not  consider  that  as  a  very  clear  pro¬ 
position.  The  case  certainly  admits  (to  say  no  more  of  it)  of 
another  and  enlarged  construction.  Upon  this  point  then  I  re¬ 
fer  again  to  the  rules  applicable  to  the  construction  of  grants  of 
the  king.  “  If  two  constructions  may  be  made,  one  to  make 
the  grant  good,  the  other  to  make  it  void,  then  for  the  honour  of 
the  king  and  the  benefit  of  the  subject,  such  construction  shall 
be  made  that  the  grant  shall  be  good.”  The  court  are  “  to  con¬ 
strue  the  king’s  grant  most  beneficially  for  the  honour  of  the 
king,  and  for  the  relief  of  the  subject,  and  not  to  make  any 
strict  or  literal  construction  in  subversion  thereof.”  Now  if  the 
case  be  tried  upon  those  principles,  how  will  it  stand  ? 

The  legislature,  for  a  valuable  consideration  received  by  the 
public,  in  the  bridge  erected  at  immense  expense  and  risk, 
grant  to  the  meritorious  and  enterprising  proprietors  a  toll  for 
their  own  use,  first  for  forty,  and  then  for  thirty  years  more. 


163 


But  the  state  lias  a  right  indirectly  to  withdraw  the  transporta¬ 
tion  from  it.  Are  these  things  consistent  with  the  honour  of  the 
government  and  the  safety  of  the  people  ? 

It  would  be  in  vain  to  tell  the  proprietors  that  their  franchise 
remained,  notwithstanding  a  new  bridge  had  been  placed  in  ef¬ 
fect  side  by  side,  which  should  deprive  the  old  bridge  of  its 
emoluments.  Suppose,  for  example,  a  free  bridge  should  be 
so  placed  by  the  side  of  the  toll  bridge — it  would  seem  a  mere 
mockery,  to  tell  the  proprietors  that  they  might  have  all  the  toll 
which  they  could  collect  for  the  transportation  over  their  bridge 
so  long  as  their  charter  continued.  The  free  bridge  would  as 
effectually  destroy  their  franchise,  as  if  an  armed  force  were 
stationed  to  prevent  any  passing  over  it.  Who  does  not  see 
that  their  charter  would  be  subverted  by  this  construction  ?  All 
must  admit  the  fact  which  would  result. 

But  the  maxims  of  the  common  law  should  be  applied  to  this 
subject.  One  shall  not  do  indirectly,  what  he  has  no  right  to  do 
directly. — Every  grant  shall  carry  with  it  all  things  which  are 
necessary  to  the  enjoyment  of  it.  “  Quando  aliquid  prohibe- 
tur,  prohibetur  et  omne  per  quod  devenitur  ad  illud.”  “  Quando 
aliquid  conceditur,  conceditur  et  id  per  quod  pervenitur  ad 
illud.'’'’  “  The  king  (said  the  excellent  and  independent  Chief 
Justice  Gascoine )  cannot,  by  his  charter,  oust  the  common  peo¬ 
ple  of  their  inheritance  which  they  have  in  the  common  law.” 
8  H.  4,  19. 

It  has  not  been  contended  that  the  legislature  could,  at  their 
own  will,  revoke  or  repeal  their  own  grant.  Notwithstanding 
this  is  obviously  clear,  yet  I  cannot  deny  myself  the  pleasure  of 
quoting  a  passage  from  an  elaborate  opinion  for  the  whole  court 
by  Story  J.  upon  this  point,  in  Terrett  v.  Taylor,  9  Cranch, 
52.  “  But  (said  the  learned  judge)  that  the  legislature  can  re¬ 

peal  statutes  creating  private  corporations,  or  confirming  to 
them  property  already  acquired  under  the  faith  of  previous  laws, 
and  by  such  repeal  can  vest  the  property  of  such  corporations 
exclusively  in  the  state,  or  dispose  of  the  same  to  such  pur¬ 
poses  as  they  may  please,  without  the  consent  or  default  of  the 
corporators,  we  are  not  prepared  to  admit ;  and  we  think  our¬ 
selves  standing  upon  the  principles  of  natural  justice,  upon  the 


164 


fundamental  laws  of  every  free  government,  upon  the  spirit  and 
letter  of  the  constitution  of  the  United  States,  and  upon  the 
decisions  of  the  most  respectable  judicial  tribunals,  in  resisting 
such  a  doctrine.” 

This  is  the  doctrine  of  the  common  law  expressed  in  the 
language  of  the  time.  “  If  the  king  grant  a  ratification  to  an 
incumbent  of  a  church,  of  which  he  has  the  right  of  present¬ 
ment,  and  repeal  this  ratification,  the  revocation  is  void  ;  for  the 
king  cannot  (say  the  court  10  H.  4,  pi.  10,)  repeal  that,  nor  a 
grant  of  pardon,  nor  a  release,  et  hajus  modi.” 

Now  I  maintain,  that  if  the  state  could  not  directly  repeal 
their  grant,  they  could  not  do  that  which  in  its  operation  and 
effect  would  be  equivalent  to  a  repeal  of  it.  If  this  principle 
be  not  supported  and  followed  out,  we  shall  never  have  a  reme¬ 
dy  for  any  violation  of  contracts,  or  of  the  constitution.  We 
shall  never  see  an  act  reciting,  that  whereas  the  legislature  did 
grant  three  acres  of  land  or  a  toll  for  forty  years,  be  it  hereby 
enacted  that  the  grantees  shall  have  only  one  acre  of  land,  or 
toll  for  thirty,  or  any  less  number  of  years.  No  legislator  would 
vote  for  a  thing  of  such  naked  deformity.  But  if  the  construc¬ 
tion  of  the  charter  under  consideration  be  limited  to  the  width  of 
the  bridge,  and  a  free  bridge  should  be  set  up  side  by  side,  the 
effect  would  be,  to  repeal  all  the  beneficial  interest  of  the  pro¬ 
prietors  in  their  grant.  Yet  there  would  be  no  direct  infringe¬ 
ment  of  it  in  terms,  for  the  free  bridge  which  we  have  sup¬ 
posed,  would  not  come  so  near  as  to  touch  the  old  one,  but  just 
near  enough  to  draw  away  all  the  toll  from  it. 

If  it  would  not  be  lawful  to  grant  a  new  free  bridge,  is  it  law¬ 
ful  to  grant  a  new  toll  bridge,  with  similar  or  less  toll,  side  by 
side  of  the  old  one  ?  What  difference  is  there  in  the  principles 
of  the  law  applicable  to  the  two  supposed  cases?  I  think  there 
is  none.  The  only  difference  is  in  the  amount  of  injury  which 
would  be  sustained  from  the  free  or  from  the  toll  bridge.  The  latter 
would  take  away  perhaps  three  fourths  or  more  of  the  franchise 
first  granted,  the  former,  the  whole.  As  if  it  were  lawful  to  im¬ 
pair  the  original  grant  to  any  extent  short  of  its  annihilation  ! 

It  has  been  suggested,  but  not  much  pressed,  that  the  legisla¬ 
ture  has  as  much  right  to  grant  rival  bridges,  as  they  have  to 


175 


grant  rival  banks  and  insurance  companies.  But  there  is  an 
obvious  difference  between  these  cases.  Grants  of  banking  and 
insurance  corporations  merely  give  an  authority  to  manage  their 
private  concerns.  A  mere  faculty  or  power  of  doing,  in  a  cor¬ 
porate  name,  what  they  might  at  common  law  have  lawfully 
done  as  individuals.  But  bridges  and  ferries  are  publici  juris. 
A  toll  is  granted  for  a  service  rendered  to  the  public.  The  bo¬ 
nus  which  banks  or  insurance  companies  pay  for  their  charters, 
does  not  make  them  matters  in  which  the  public  have  an  inter¬ 
est.  They  may  discontinue  them  and  divide  the  stock  just 
when  they  please,  paying  their  debts.  No  individual  can  com¬ 
pel  a  bank  to  lend  him  money,  or  an  insurance  company  to 
write  upon  his  ship,  unless  they  please.  But  the  proprietors  of 
the  bridge  or  ferry  are  under  great  liabilities  to  the  public  ;  are 
compellable  to  permit  the  public  to  use  them,  paying  toll.  To 
use  the  words  of  the  old  law  as  to  ferries,  “  they  are  liable  to 
grievous  amercements,”  for  non-performance  of  their  duty. 

It  has  been  argued  that  the  legislature  has  the  right  of  deter¬ 
mining  upon  the  expediency  of  granting  bridges,  turnpikes  and 
ferries,  and  that  those  grants  are  to  be  taken  subject  to  the  im¬ 
plied  right  of  the  legislature  to  make  others,  wherever  and 
whenever,  in  their  opinion,  the  public  good  requires,  without 
compensating  for  any  injury  which  former  grantees  may  receive 
from  such  subsequent  grants,  in  any  other  way  or  degree  than 
to  the  legislature  itself  should  seem  right. 

If  that  proposition  be  true,  it  proves  that  legislative  grants 
may  indirectly  be  avoided  and  defeated,  at  the  will  of  the  gran¬ 
tors  ;  so  that  their  grantees  for  valuable  consideration  will  not, 
in  fact,  have  any  beneficial  right  of  property  in  them.  It  would 
by  implication  insert  in  every  such  grant  a  provision,  that  it 
should  be  held  at  the  will  of  the  grantor,  notwithstanding  it 
purported  to  be  for  certain  years  to  come. 

Much  reliance  has  been  placed  upon  the  case  of  Tripp  v. 
Frank,  4.  T.  R.  666.  That  was  an  action  for  an  alleged  in¬ 
jury  to  Tripp’s  ferry  over  the  river  Humber,  from  Kingston  upon 
Hull  to  Barton.  The  defendant  carried  passengers  from  Kings¬ 
ton  to  Barrow,  three  miles  below  Barton.  But  those  passen¬ 
gers  had  no  intention  of  going  to  Barton,  but  only  to  Barrow, 


166 


and  the  ferry-men  were  under  no  obligation  to  carry  them  to 
Barrow.  The  court  held,  that  they  were  not  obliged  to  pass 
over  the  ferry  to  Barton,  (where  they  did  not  want  to  go,)  to 
get,  to  Barrow  circuitously,  when  they  might  go  thither  directly 
in  the  defendant’s  private  market-boat. 

Let  us  suppose  the  Charlestown  ferry  in  operation,  and  adapt 
that  case  to  the  adjacent  topography.  Substitute  Charlestown 
for  Kingston,  Boston  for  Barton,  Sewall’s  Point  in  Brookline  for 
Barrow,  and  Charles  river  for  the  Humber,  and  the  case  would 
stand  thus,  upon  a  comparison  with  the  case  at  bar.  If  a  pas¬ 
senger  wanted  to  go  from  Charlestown  to  Sewall’s  point,  he  should 
not  be  obliged  to  pass  over  the  ferry  to  Boston,  and  from  thence 
to  Sewall’s  point  by  the  way  of  the  Roxbury  neck,  or  Western 
avenue,  if  he  could  get  an  individual  to  carry  him  in  his  boat  di¬ 
rectly  to  Sewall’s  point.  Be  it  so.  But  suppose  the  passenger 
really  wanted  to  go  to  Boston,  and  procured  an  individual  to 
carry  him  a  little  above  or  a  little  below  the  ferry-ways  on  the 
Boston  side  ;  that  would  be  a  fraud  upon  the  owner  of  the 
Charlestown  ferry.  “  For  (said  the  court  in  Tripp  v.  Frank ) 
if  certain  persons,  wishing  to  go  to  Barton,  had  applied  to  the 
defendant,  and  he  had  carried  them  a  little  distance  above  or 
below  the  ferry,  it  would  be  a  fraud  on  the  plaintiff’s  right,  and 
would  be  a  ground  of  action.”  Now,  if  it  were  not  for  the 
great  respect  I  have  for  my  learned  brethren,  I  should  have 
thought  that  that  case  was  much  in  favour  of  the  plaintiffs.  It 
proves  conclusively ,  that  the  franchise  extends  beyond  the  ferry- 
ways,  and  protects  the  owner  against  near  and  injurious  trans¬ 
portation.  It  seems  to  point  out,  in  direct  and  strong  language, 
the  injury  which  the  defendants  inflict.  They  transport  persons 
who  desire  to  go  to  Boston,  taking  them  up  a  little  above  the 
old  ferry-ways  on  the  Charlestown  side,  and  landing  them  a  lit¬ 
tle  above  the  ferry-ways  on  the  Boston  side.  The  court  say, 
in  the  case  cited,  that  “  this  is  a  fraud  upon  the  plaintiff's 
right." 

There  is  a  provision  in  a  colonial  ordinance,  “  that  whoso¬ 
ever  hath  a  ferry  granted  upon  any  passage,  shall  have  the  sole 
liberty  for  transporting  passengers  from  the  place  where  such 
ferry  is  granted,  to  any  other  ferry-place  where  ferry-boats  are 


167 


to  land,  and  any  ferry-boat  that  shall  land  passengers  at  any 
other  ferry,  may  not  take  passengers  from  thence,  if  the  ferry¬ 
boat  of  that  place  be  ready.”  For  example — it  might  be  law¬ 
ful  for  the  Winnesimmet  ferry-boat  to  carry  passengers  to  Charles¬ 
town  ferry,  but  not  from  thence  to  Boston,  unless  the  Charles¬ 
town  ferry-boat  was  not  ready.  Col.  Laws  (edition  of  1672), 
50,  tit.  Ferries. 

But  it  is  said  that  there  has  been  a  uniform  course  of  legisla¬ 
tion  which  should  govern  the  construction  of  the  grants  now 
under  consideration.  And  we  have  been  referred  to  the  char¬ 
ters  for  the  West  Boston  bridge,  the  Canal  bridge  and  the  Pris¬ 
on  Point  dam,  the  Mill-dam  or  Western  avenue,  South  Boston 
free  bridge,  Malden  bridge,  Chelsea  bridge,  which  destroyed 
Winnesimmet  ferry,  and  of  two  parallel  turnpikes  from  Boston 
to  Watertown. 

In  regard  to  the  Western  avenue,  perhaps  it  could  not  be 
considered  a  nuisance  to  the  Charles  river  bridge,  especially 
after  the  proprietors  of  the  Charles  river  bridge  had  received 
compensation  from  the  West  Boston  bridge  which  is  between 
them.  Besides,  the  Western  avenue  leads  from  Boston  westerly 
to  Brookline,  and  would  not  materially,  if  at  all,  affect  the 
course  of  travel  between  Boston  and  Charlestown,  communicat¬ 
ing  with  the  northerly  and  easterly  parts  of  the  state.  If  the 
plaintiffs  had  complained  against  the  proprietors  of  the  Western 
avenue,  it  is  very  probable  that  a  jury  would  not  have  found  it 
to  be  a  nuisance,  in  view  of  all  the  facts  which  have  relation 
to  it. 

In  regard  to  West  Boston  bridge,  such  compensation  was  re¬ 
quired  by  the  legislature  to  be  made,  as  induced  the  proprietors 
of  the  Charles  river  bridge  to  acquiesce.  They  had  an  exten¬ 
sion  of  their  charter  for  thirty  years  beyond  the  term  of  the 
original  grant,  and  the  fact,  “  that  the  erection  of  the  proposed 
bridge  might  diminish  the  emoluments  of  the  proprietors  of  the 
Charles  river  bridge,”  was  mentioned  in  the  report  of  the 
committee  which  was  accepted  by  the  legislature,  as  one  of  the 
reasons  which  induced  them  to  make  the  additional  grant.  It 
is  true  indeed,  that  the  committee  report  as  their  opinion,  “  that 
there  was  no  ground  to  maintain  that  the  act  incorporating  the 


168 


proprietors  of  Charles  river  bridge,  was  an  exclusive  right  to 
build  over  the  waters  of  Charles  river. ”  And  that  opinion  may 
be  very  well  founded ;  for  the  river  extends  many  miles  beyond 
West  Boston  bridge  to  places  which  could  not  be. considered  as 
near  to  Charles  river  bridge.  Besides,  it  is  at  most  to  be  con¬ 
sidered  as  the  opinion  of  one  party  to  a  contract.  But  it  was 
represented  by  the  proprietors  of  Charles  river  bridge,  that  it 
would  “  operate  injustice  and  injury  ”  to  them,  if  the  legislature 
should  grant  the  charter  for  the  building  of  the  West  Boston 
bridge.  The  corporation  did  not  apply  in  forma  pauperis ,  but 
under  a  claim  of  right ;  and  the  legislature  thought  it  reasona¬ 
ble  and  proper  to  make  the  additional  grant.  But  why  was  it 
reasonable  or  proper,  if,  by  the  true  intent  and  meaning  of  the 
original  grant,  the  proprietors  of  Charles  river  bridge  were  lim¬ 
ited  to  the  width  of  their  bridge  ? 

It  was  said,  and  not  denied,  that  the  free  bridge  at  South 
Boston  was  not  opposed  by  a  majority  of  the  proprietors  of 
South  Boston  toll  bridge,  because  their  real  estate  would  rise 
in  value  more  than  they  would  lose  by  the  free  bridge. 

The  Winnesimmet  ferry  is  over  a  wide  arm  of  the  sea  be¬ 
tween  Chelsea  and  Boston.  It  sustained  some  damage  by  the 
Malden  bridge  (which  was  erected  where  the  penny  ferry  had  been 
before  kept),  but  more  damage  by  the  Chelsea  bridge.  If  Wil¬ 
liams,  who  owned  the  Winnesimmet  ferry,  had  taken  any  legal 
measures  to  vindicate  his  rights,  they  wmuld  have  been  ascer¬ 
tained,  and  the  injury  redressed,  if  any  had  been  sustained. 
The  law  was  as  free  for  him  as  it  was  to  Chadwick.  All  that 
is  proved  in  that  case  is,  that  the  legislature  did  not  think  it  was 
one  which  required  a  compensation.  And  from  Williams’s  ac¬ 
quiescence  it  may  be  inferred,  that  he  did  not  think  it  was  worth 
the  trouble  and  expense  of  a  lawsuit. 

The  same  remark  may  apply  to  the  case  of  the  rival  turn¬ 
pikes.  There  has  been  no  judicial  investigation.  We  know 
not  how  far  the  proprietors  expected  their  indemnification  to 
arise  from  toll,  or  from  the  additional  value  which  their  roads 
would  confer  on  some  other  property  of  the  proprietors. 

All  the  injury  sustained  by  the  Malden  bridge,  by  the  erection 
of  Chelsea  bridge,  was  compensated  by  permitting  the  former 
to  become  interested  in  the  lattter. 


169 


In  the  case  of  the  Canal  bridge,  no  compensation  was  granted 
to  the  plaintiffs.  Probably  the  legislature  believed  that  a  great 
part  of  the  travel  which  would  pass  over  the  Canal  bridge 
would  have  passed  over  the  West  Boston  bridge,  for  the  build¬ 
ing  of  which,  compensation  had  been  made  to  the  plaintiffs,  by 
an  additional  charter. 

And  the  Prison  Point  dam  was  for  the  accommodation  of 
persons  going  from  Charlestown  to  Cambridge,  and  so  within 
the  principle  of  Tripp  v.  Frank. 

Sometimes  the  legislature  made  a  compensation  to  a  party  in¬ 
jured  by  their  grant,  and  sometimes  they  did  not.  In  the  latter 
case  the  presumption  would  be,  that  they  thought  the  party  had 
no  just  claim  for  damages  ;  and  if  he  acquiesced,  that  presump¬ 
tion  would  be  strengthened. 

In  most  cases  the  compensation  was  accepted,  and  of  course 
there  was  nothing  heard  of  claims  for  damages  in  such  cases. 
Thus,  on  the  same  day  that  the  charter  for  Haverhill  bridge 
was  granted  over  the  Merrimac,  a  charter  was  granted  for  a 
bridge  over  the  Piscataqua.  And  a  provision  was  made  for 
compensating  the  injury  which  the  ferry  there  would  receive, 
somewhat  analogous  to  that  which  was  made  to  Chadwick.  But 
no  provision  for  a  jury  was  made  in  either  case.  Whether  Rice 
(who  owned  the  ferry)  accepted  it  or  not,  I  do  not  know.  If 
he  had  resisted,  his  legal  rights  would  have  been  maintained. 

It  is  not  safe  to  follow  legislative  precedents  in  the  formation 
of  a  judicial  opinion.  We  have  a  report  of  my  Lord  Coke,  of 
an  unwarrantable  grant  made  by  Queen  Elizabeth,  and  a  simi¬ 
lar  grant  made  by  her  father,  Henry  VIII,  was  cited  to  support 
the  grant  of  the  queen.  But  the  court,  “  nullo  contradicente  aut 
reluctante ,”  held  her  letters  patent  to  be  void.  I  would  say  in 
regard  to  this  part  of  the  case,  as  the  court  did  in  that,  “  quod 
judicandum  est  legibus,  non  exemplis.” 

It  has  been  contended  for  the  defendants,  that  if  the  legisla¬ 
ture  could  not  lawfully  grant  bridges  and  ferries  when  and  where 
they  thought  the  public  good  required,  great  inconveniences 
would  follow.  Now  I  am  not  disposed  to  maintain  in  this  argu¬ 
ment,  that  the  legislature  may  not  grant  as  many  charters  for 
bridges,  &c.  as  they  may  think  necessary  for  the  public  accom- 

22 


170 


modation.  Let  them  take  private  property  for  public  uses,  but 
not  in  welcome,  unless  it  be  given  ;  not  at  their  own  price 
against  the  will  of  the  owner,  but  subject  to  a  compensation  to 
be  fixed  by  a  jury  of  the  country. 

That  is  the  manner  in  which  private  property  is  protected  in 
England.  And  when  it  is  taken  by  the  authority  of  parliament 
for  public  uses,  the  special  authority  must  be  strictly  pursued. 
Rex  v.  Croke,  Cowp.  26.  If  the  persons  refuse  or  are  unable 
to  agree,  the  damages  are  assessed  by  a  jury.  The  government 
take  what  they  want  for  the  public  accommodation,  but  they 
pay  for  it,  at  an  agreed  price,  or  an  assessment  of  a  jury. 
Leader  v.  Moxton,  3  Wils.  466.  In  New  York  the  same  just 
principles  are  adopted.  The  People  v.  Platt,  17  Johns.  R. 
195 ;  Bradshaw  v.  Rogers,  20  Johns.  R.  106. 

Again,  it  is  said  that  the  rule  contended  for  by  the  plaintiffs 
is  impracticable  and  uncertain.  How  near  (it  is  inquired)  is  it 
within  the  authority  of  the  legislature  to  grant  a  new  bridge, 
without  creating  a  private  nuisance  to  one  which  had  been  be¬ 
fore  granted  ? 

Now  I  think  the  plaintiffs  are  not  to  answer  that  question  “  by 
compulsion.”  It  is  not  necessary  for  them,  in  this  case,  to  fix 
precisely  how  far  on  each  side  of  their  bridge  their  franchise 
extends.  If  they  are  not  confined  to  the  width  of  their  bridge, 
the  defendants’  bridge  must  be  considered  near.  It  is  in  effect 
side  by  side.  It  leads  from  the  same  promontory  in  Charles¬ 
town  to  the  shore  directly  opposite.  So  that  if  the  terms  of 
the  original  grant  of  the  ferry  and  bridge  were  less  extensive 
than  the  law  Would  imply,  they  are  certainly  broad  enough  to 
cover  the  place  where  the  new  bridge  has  been  granted,  unless, 
as  has  been  before  said,  the  right  be  confined  to  the  width  of 
the  bridge.  But  if  the  terms  of  the  grant  were  as  broad  as  a 
grant  of  a  ferry  across  a  river,  and  the  question  should  be  asked, 
how  near  to  it  another  should  be  granted,  I  would  answer  in  the 
words  of  the  books,  so  near  as  not  to  impair  the  profits  of  that 
first  granted.  Or,  to  use  the  words  of  Chancellor  Kent  in  Ogden 
v.  Gibbons,  4  Johns,  Ch.  R.  161,  when  speaking  of  the  free¬ 
hold  interest  in  a  ferry,  or  fair,  or  market,  “  the  grant  must  be 
so  construed  as  to  give  it  due  effect,  by  excluding  all  contigu- 


171 


ous  and  injurious  competition .”  These  questions  may  be  set¬ 
tled  in  regard  to  a  bridge,  just  as  they  have  been  for  ages  settled 
in  regard  to  a  ferry.  They  are  to  be  tried  and  determined  by 
a  jury,  unless,  as  in  the  case  at  bar,  that  mode  of  trial  is  waived 
by  the  parties,  who  consent  that  the  court  shall  try  the  facts  as 
well  as  the  law.  Thus  it  is  said  in  Fitzh.  N.  B.  184,  A.  note  b  : 
“  It  shall  be  put  in  issue,  whether  it  be  a  nuisance  or  not  A  16 
Yin.  26,  tit.  JVuisance,  G.  pi.  2,  S.  P.  To  maintain  that  issue, 
the  law  would  require  of  the  plaintiff’  to  prove  that  his  was  the 
elder  franchise,  that  the  new  one  was  near,  and  that  it  impaired 
the  profits  of  that  which  was  first  granted.  Haverhill  bridge 
was,  in  contemplation  of  law,  near  to  Chadwick’s  ferry,  although 
it  was  at  the  distance  of  forty  rods . 

But  then  it  is  inquired,  what  diminution,  or  shall  every  possi¬ 
ble  diminution  of  profits  entitle  the  owner  of  the  ancient  fran¬ 
chise  to  a  remedy  ?  That  question  need  not  be  definitely  settled 
in  this  case,  for  the  new  bridge  has  already  taken  three  fourths 
of  the  profits  of  the  old  one.  But  I  have  no  difficulty  in  meet¬ 
ing  that  question.  If  there  were  only  small  damages  proved, 
small  damages  would  be  recovered.  If  it  came  within  the  rule 
of  de  minimis,  &;c.  the  law  would  not  concern  itself  to  afford  re¬ 
lief.  There  is  no  more  reason  why  one  entitled  to  small  dam¬ 
ages  should  not  recover  in  this,  as  well  as  in  any  other  judicial 
proceeding. 

It  was  suggested  in  the  course  of  the  argument  for  the  de¬ 
fendants,  that  the  franchise,  being  a  local  incorporeal  heredita¬ 
ment,  might  be  considered  as  real  estate,  for  the  taking  of  which 
their  act  of  incorporation  makes  provision  for  a  compensation, 
to  be  ascertained  by  jury.  But  the  provision  was  evidently  in¬ 
tended  to  operate  in  a  more  limited  sense.  If  that  had  not  been 
the  case,  the  word  property  (which  is  used  in  the  constitution) 
would  have  been  employed,  instead  of  the  words  “  real  estate .” 
It  is  clear  therefore  that  no  provision  was  made  for  any  injury 
to  the  plaintiffs’  franchise.  I  forbear  to  remark  on  the  great 
amount  of  property  involved  in  the  decision  of  this  cause.  Im¬ 
mense  as  it  is,  it  would  be  purchased  too  dearly  by  the  violation 
of  the  plighted  faith  of  the  state. 


172 


I  lay  out  of  the  case  all  the  objections  which  have  been  made 
to  the  right  of  the  plaintiffs  to  have  the  benefit  of  their  addition¬ 
al  charter,  by  reason  of  any  alleged  fraud  in  obtaining  it,  or  for 
an  alleged  want  of  an  acceptance,  or  non-performance  of  du¬ 
ties  required  by  it : — and  in  this,  I  am  happy  to  concur  with 
my  brethren.  The  existence  of  the  plaintiffs  as  a  corporation 
is  acknowledged  in  the  charter  to  the  defendants,  and  the  validi¬ 
ty  of  the  additional  charter  can  be  properly  questioned  and  tried 
in  a  quo  warranto,  in  behalf  of  the  state,  and  not  in  this  inci¬ 
dental  manner  by  a  stranger. 

Something  was  suggested  in  the  argument  for  the  defendants, 
about  the  solicitude  which  the  Court  must  feel  in  deciding  against 
the  validity  of  legislative  enactments.  It  should  be  remember¬ 
ed  however,  that  the  solicitude  which  a  judge  should  feel,  does 
not  arise  so  much  from  the  power  and  situation  of  the  parties, 
as  from  an  anxiety  to  understand  and  declare  the  law  of  the 
land  which  is  applicable  to  the  case.  When,  after  patient  hear¬ 
ing  and  examination,  he  has  arrived  at  that  point,  there  should  be 
an  end  of  solicitude.  The  consequences,  which  may  be  ex¬ 
pected  to  follow'  from  the  law',  are  common  to  the  judge  and  his 
fellow-citizens.  I  speak  not  of  personal  consequences  and 
expectations,  which,  as  they  have  little  or  no  tendency  to  show 
what  the  law  is,  are  not  to  have  influence  in  the  decision.  I 
am  free  to  declare,  however,  that  the  principles  and  results 
which  I  would  adopt,  would  be  as  beneficial,  as  they  appear  to 
me  to  be  clear.  There  would  be  a  continued  and  increasing 
confidence  in  legislative  contracts.  Men  of  capital  and  energy 
would  embark  their  funds  in  enterprises  of  a  public  character, 
in  the  hope  that  their  own  fortunes  might  be  advanced  with  the 
public  prosperity.  The  state  w'ould  command  the  wealth  and 
services  of  the  people.  But  let  the  reverse  of  this  be  suspect¬ 
ed,  and  public  credit  will  be  paralysed.  It  is  more  sensitive 
than  the  plant  which  withers  upon  the  touch,  but  will  revive. 
Touch  public  credit,  and  it  dies.  It  may  stand  awhile,  as  a  tree 
which  has  been  destroyed  by  the  worm  at  the  root,  but  will 
yield  neither  fruit  nor  shade  when  most  needed. 

In  the  construction  of  contracts,  the  law  regards  the  subject- 
matter  more  than  the  manner ;  the  substance  more  than  the 


173 


form  ;  the  spirit  more  than  the  letter.  “  In  fide,  quid  senseris, 
non  quid  dixeris,  cogitandum.’1''  Cic.  T)e  Off.  lib.  1. 

There  are  some  frets  in  the  case  which  show  the  intent  and 
meaning  of  the  parties  to  the  act  of  1784,  in  language  not  to  be 
misunderstood.  All  the  direct  communication  between  Boston 
and  Charlestown  had  been  over  the  ferry  there,  from  the  first 
settlement  of  the  country.  The  petitioners  for  the  bridge  re¬ 
ferred  the  legislature  to  that  fact.  They  in  effect  informed  them 
of  the  sources  from  whence  they  expected  to  derive  their  reve¬ 
nue.  The  travel  from  the  west  and  from  the  north  and  from  the 
east,  passing  from  Charlestown  to  Boston,  was  to  pass  over  a 
toll  bridge,  instead  of  a  toll  ferry.  And  that  toll  was  to  be  for 
the  use  of  the  petitioners.  That  was  the  ground  work,  upon 
which  their  then  perilous  enterprise  rested.  And  the  legislature, 
by  their  granting  their  petition,  assented  to  all  the  reasonable  ex¬ 
pectations  which  it  had  disclosed. 

If  it  had  been  proposed  to  pass  an  act  for  the  sequestration  of 
the  toll  of  Charles  river  bridge  to  an  amount  not  exceeding 
60,000  dollars,  to  build  a  bridge  for  the  use  of  the  common¬ 
wealth  where  the  Warren  bridge  has  been  built,  it  is  not  believed 
that  any  member  of  the  legislature  would  have  voted  for  it.  A 
sense  of  justice  would  have  prevented  the  adoption  of  a  measure 
so  inequitable  and  oppressive  upon  its  front.  But  what  is  the 
difference  between  a  sequestration  of  the  money  actually  in 
the  plaintiffs’  treasury,  and  an  act  to  prevent  that  amount  from 
going  into  their  treasury.  I  ask,  what  difference  is  there  in  ef¬ 
fect,  of  the  one  and  of  the  other  upon  the  plaintiffs’. interest. 
The  difference  is  in  form  only,  not  of  substance,  assuming,  what 
it  is  believed  cannot  be  denied,  that  all  the  travel  over  the  War¬ 
ren  bridge  would  have  passed  over  the  Charles  river  bridge,  if 
the  Warren  bridge  had  not  been  built. 

By  the  10th  section  of  the  1st  article  of  the  constitution  of  the 
United  States,  it  is  provided,  that  no  state  shall  pass  a  law  im¬ 
pairing  the  obligation  of  contracts.  By  the  10th  article  of  the 
declaration  of  rights  in  the  constitution  of  Massachusetts,  it  is 
provided,  that  “  whenever  the  public  exigencies  require  that  the 
property  of  any  individual  should  be  appropriated  to  public  uses, 
he  shall  receive  a  reasonable  compensation  therefor.”  By  the 


174 


12th,  “  no  subject  shall  be  deprived  of  his  property,  immunities, 
privileges  or  estate,  but  by  the  judgment  of  his  peers,  or  the  law 
of  the  land.”  By  the  15th,  that  “in  all  controversies  concern¬ 
ing  property  and  in  all  suits  between  two  or  more  persons,  ex¬ 
cept  in  cases  in  which  it  has  heretofore  been  otherwise  used  and 
practised,  the  parties  have  a  right  to  a  trial  by  a  jury  ;  and  this 
method  of  procedure,  shall  be  held  sacred,  unless,  in  causes 
arising  on  the  high  seas,  and  such  as  relate  to  mariners’  wages, 
the  legislature  shall  hereafter  find  it  necessary  to  alter  it.”  It 
has  not  been  contended  that  the  case  at  bar  falls  within  the  ex¬ 
ception. 

6.  I  proceed  to  consider  very  briefly,  the  operation  of  the  new 
bridge,  and  the  consequences  resulting  from  the  grant  of  it. 

When  the  charter  for  the  erection  of  the  Warren  bridge  pass¬ 
ed,  the  plaintiffs  had  a  right  to  the  toll  granted  to  them  for  the 
transportation  over  their  bridge  betfveen  Boston  and  Charlestown, 
for  twenty-eight  years  then  to  come.  The  defendants  are  au¬ 
thorized  by  the  legislature  to  build  the  new  bridge,  but  they  are 
to  be  paid  for  all  costs  and  charges,  and  with  interest  too,  out  of 
the  toll  withdrawn  from  the  old  bridge.  The  effect  will  be  thus 
to  compel  the  plaintiffs  to  pay  for  the  new  bridge.  But  that  is 
only  the  beginning  of  their  trouble.  When  it  is  built  with  the 
money  so  by  the  legislature  withdrawn  from  the  old  bridge,  the 
plaintiffs  are  not  to  have  it.  In  six  years,  or  sooner,  the  state  is 
to  come  into  full  possession  of  it  in  complete  repair.  If  there 
should  be  no  more  legislation  about  the  matter,  it  then  becomes 
a  free  bridge.  If  the  present  rate  of  toll  should  be  continued,  it 
will  probably  take  three  fourths  or  more  of  the  toll  from  the  pro¬ 
prietors  of  the  old  bridge.  If  the  rate  should  be  lowered,  a 
greater  proportion  will  be  withdrawn,  and  the  state,  (the  grantor  !) 
the  party  without  whose  permission  the  new  bridge  could  not 
have  been  built,  the  party  contracting  with  the  plaintiffs,  by  force 
of  their  own  act,  will  receive  the  toll  to  their  own  use.  It  would 
be  very  doubtful  if  the  plaintiffs  could  collect  toll  enough  at  the 
old  bridge  to  pay  the  annuity  to  the  college.  And  if  the  state 
should  leave  the  new  bridge  open  as  a  free  bridge,  the  plaintiffs’ 
franchise  will  be  utterly  destroyed. 


175 


I  think  the  last  grant  would  not  be  supported  by  the  law  of 
England,  if  the  question  were  between  the  king  and  his  subject. 
The  principles  of  the  common  law  and  of  natural  justice,  would 
restrain  the  royal  prerogative.  The  right  of  a  trial  by  jury 
would  be  there  maintained.  It  would  be  a  matter  of  deep  con¬ 
cern,  that  property  should  be  less  protected  under  our  free  insti¬ 
tutions  than- it  is  in  our  parent  country.  We  have  embodied  the 
principles  of  the  common  law  and  of  natural  justice  in  our  con¬ 
stitutions  of  government,  which  are  paramount  to  legislative 
enactments,  and  binding  upon  the  judicial  department. 

Now  with  all  my  habitual  and  sincere  respect  for  the  legisla¬ 
ture,  I  cannot  but  think  that  the  grant  to  the  defendants  is  incon¬ 
sistent  with  the  grants  before  made  to  the  plaintiffs.  The  last 
act  must  have  passed  without  a  due  regard  to  the  constitutional 
rights  vested  in  the  plaintiffs.  It  impairs  the  obligation  of  the 
grants  before  made  to  the  plaintiffs.  It  takes  away  their  proper¬ 
ty  for  public  uses,  without  compensation,  against  their  consent, 
and  without  provision  for  a  trial  by  a  jury.  It  is  therefore  void. 

In  my  judgment,  therefore,  the  plaintiffs  have  maintained  their 
complaint,  and  this  Court  should  grant  relief. 

Parker  C.  J.  [After  stating  the  pleadings.]  Several  pre¬ 
liminary  questions  arising  out  of  these  multifarious  pleadings  ap¬ 
pear  to  us  not  to  require  much  consideration.  The  first  is,  whether 
the  act  of  1791,  extending  the  franchise  of  Charles  river  bridge, 
was  accepted  or  not.  It  was  for  the  benefit  of  the  corporation, 
and  therefore  may  be  presumed  to  have  been  accepted.  It  was 
accepted  formally  by  vote  before  the  expiration  of  the  first  char¬ 
ter,  and  before  the  granting  of  Warren  bridge,  which  is  sufficient. 

In  regard  to  the  relinquishment  of  double  toll  on  the  Lord’s 
day,  it  appears  that  from  about  the  time  of  passing  the  act  of 
1791,  they  ceased  to  exact  it,  and  that  it  has  not  been  taken 
since ;  which  is  a  sufficient  relinquishment. 

There  have  not  appeared,  on  the  argument,  any  facts  in  con¬ 
troversy  which  have  any  important  bearing  on  the  principal  ques¬ 
tions.  The  allegation  of  fraud  in  obtaining  the  extension  of  the 
charter  has  not  been  made  a  matter  of  argument,  and  it  has 
been  properly  omitted  5  for  it  does  not  appear  that  the  legisla¬ 
ture  have  ever  called  in  question  their  grants  on  this  or  any  other 


176 


ground,  and  none  but  the  public  could  raise  that  question  ;  and 
they,  only  by  legal  process,  such  as  a  quo  warranto,  under  which 
the  corporation  might  defend  themselves  against  such  a  charge. 
Indeed  the  recognition  by  the  legislature,  of  the  corporation  of 
Charles  river  bridge,  in  the  very  act  incorporating  the  War¬ 
ren  bridge,  and  of  their  right  to  continue,  and  discharging  them 
from  half  the  annuity  to  Harvard  College,  is  a  sufficient  answer 
to  this  charge. 

The  way  is  thus  prepared  for  the  consideration  of  the  real 
questions  in  the  case,  which  are  indeed  of  solemn  import,  and 
require,  as  they  have  received,  the  most  deliberate  attention 
which  our  time  and  opportunity  will  admit  of. 

The  argument  on  the  part  of  the  plaintiffs  rests  upon  divers 
propositions  of  a  general  nature,  and  upon  the  application  of  them 
to  the  facts  which  exist  in  this  case. 

The  propositions  themselves  are  either  so  clear  as  to  be  admit¬ 
ted  by  the  counsel  for  the  defendants,  or  so  well  settled  by  judi¬ 
cial  tribunals  of  the  highest  authority,  as  would  render  any  at¬ 
tempt  to  shake  them  wholly  unavailing. 

That  a  grant  of  land  or  other  property,  or  of  a  franchise,  by  a 
legislative  body,  having  authority  to  make  the  grant  under  the 
constitution  by  which  alone  they  can  exercise  any  power,  is  a 
contract  touching  the  thing  granted,  which  cannot  be  repealed, 
annulled,  or  restricted  in  its  operation  by  the  power  which  grants, 
otherwise  than  according  to  a  fair  constructiqn  of  the  terms  of  the 
grant  according  to  the  rules  and  principles  of  law  affecting  like 
grants  or  contracts  made  by  individuals,  and  by  process  adminis¬ 
tered  by  the  ordinary  judicial  tribunals,  was  settled  in  the  case  of 
Fletcher  v.  Peck,  6  Cranch,  87.  Indeed,  without  any  adjudica¬ 
tion,  the  principle  so  clearly  and  necessarily  results  from  the 
original  constitution  of  free  governments,  and  the  maxims  of  uni¬ 
versal  justice,  that  it  never  could  be  called  in  question  but  in 
times  of  misrule  and  anarchy. 

That  the  property  of  individual  citizens  cannot  be  appropriated 
to  the  public  use,  except  that  portion  of  it  which  he  contributes 
proportionally  with  all  other  citizens,  without  a  just  and  reasona¬ 
ble  compensation,  and  this  not  at  the  will  of  the  public  agents, 
but  to  be  assessed  and  determined  by  his  peers  in  a  trial  by  jury, 


177 


is  declared  by  the  1  Oth  article  of  the  bill  of  rights  prefixed  to 
our  constitution,  and  in  one  of  the  amendments  to  the  constitu¬ 
tion  of  the  United  States ;  declared  only,  and  not  enacted  or  for 
the  first  time  made  law ;  for  without  these  provisions,  I  hesitate 
not  to  say,  that  nowhere,  except  where  a  despotism  of  some 
kind  or  other  existed,  could  the  government  lay  its  hands  upon 
the  property  of  any  subject  without  making  him  a  fair  compensa¬ 
tion,  and  hold  it  against  the  judicial  power  of  such  a  government. 

And  even  where  no  property  is  taken  to  the  public  use,  hut 
the  rights  and  interests  of  any  one  in  a  contract  shall  be  attempt¬ 
ed  to  be  impaired  or  destroyed  by  an  act  of  legislative  power, 
such  act  becomes  wholly  inoperative  and  void  by  a  most  wise  and 
wholesome  provision  of  the  constitution  of  the  United  States, 
which  has  been  enforced  in  several  cases  of  the  highest  impor¬ 
tance,  by  the  Supreme  Court  of  the  United  States. 

These  fundamental  principles  are  no  longer  considered  dis¬ 
putable  ;  they  are  admitted  in  their  fullest  extent  by  the  counsel 
for  the  defendants  in  this  case  ;  and  on  the  other  hand,  it  is  ad¬ 
mitted  by  the  plaintiffs,  that  an  act  of  the  legislature,  whether  it 
be  a  law,  or  a.  grant,  or  a  contract,  if  not  repugnant  to  either  con¬ 
stitution,  cannot  be  called  in  question  by  the  judicial  tribunals  on 
the  ground  of  inexpediency,  or  injustice,  or  inconvenience  to  any 
individual  citizen  on  whose  property  or  interests  it  may  have  an 
injurious  operation.  So  that  the  questions  before  us  are  not 
questions  of  principle,  but  of  application  of  principles  to  the  facts 
and  circumstances  of  the  case  on  trial. 

To  show  then  that  the  authority  under  which  the  defendants 
justify  the  erection  and  maintaining  of  the  Warren  bridge,  which 
is  so  manifestly  prejudicial  to  the  interests  and  property  of  the 
proprietors  of  Charles  river  bridge,  is  not  available  to  that  pur¬ 
pose,  the  latter  assert,  that  by  virtue  of  the  act  of  1784  and  that 
of  1791,  and  the  consent  of  the  President  and  Fellows  of  Har¬ 
vard  College,  they  became  the  lawful  owners  and  proprietors  of 
an  exclusive  right  of  transportation  by  means  of  their  bridge,  of 
all  passengers  and  vehicles  over  and  across  Charles  river  between 
Boston  and  Charlestown,  for  the  toll  established  by  the  act  of 
1784,  for  the  term  of  seventy  years  from  the  first  opening  of  the 
bridge  to  travel ;  that  this  was  a  franchise  which  they  derived 
23 


178 


from  the  grant  of  the  legislature,  for  which  they  paid  a  valuable 
consideration  in  the  expense  of  erecting  and  maintaining  the 
bridge,  and  in  the  annuity  of  200/.  which  they  have  paid  and  are 
bound  still  to  pay  to  the  President  and  Fellows  of  Harvard  Col¬ 
lege  ;  that  this  is  a  property,  within  the  sense  of  that  term  a3 
used  in  the  1 0th  article  of  the  declaration  of  rights,  and  there¬ 
fore,  admitting  that  the  public  interests  required  it  should  be 
taken  from  them  and  appropriated  to  the  public  use,  yet  as  no 
compensation  is  provided  for  them  in  the  act  by  which  it  is  at¬ 
tempted  to  be  taken  from  them,  that  act  is  wholly  void  ;  and  that 
the  bridge  built  under  its  supposed  authority,  as  it  diverts  from 
their  bridge  a  large  portion  of  its  travel  and  profits,  is  a  nuisance, 
which  ought  by  this  Court,  by  virtue  of  its  authority  under  the 
statute  of  1827,  c.  88,  to  be  abated,  or  that  some  other  sufficient 
remedy  should  be  applied. 

This  is  one  ground  on  which  it  is  supposed  the  bill  ought  to  be 
sustained  and  relief  granted,  on  the  principles  and  provisions  of 
the  constitution  of  this  commonwealth,  without  reference  to  the 
constitution  of  the  United  States. 

But  it  is  also  contended,  that  although  the  interests  and 
rights  of  the  proprietors  may  not  come  within  the  meaning  of  the 
term  property,  as  used  in  the  10th  article,  and  although  the  act 
of  1827,  incorporating  the  proprietors  of  Warren  bridge,  may  not 
be  construed  to  be  an  appropriation  of  their  property  to  the  pub¬ 
lic  use,  so  as  to  make  a  provision  for  compensation  essential  to 
the  validity  of  that  act;  yet  that  the  acts  of  1784  and  1791  rela¬ 
tive  to  the  Charles  river  bridge,  constituted  a  contract  between 
the  public  and  the  proprietors  of  Charles  river  bridge,  by  virtue 
of  which  those  proprietors  acquired  a  right,  exclusive  of  all  oth¬ 
ers,  to  the  transportation  over  their  bridge,  of  all  persons  who 
should  have  occasion  to  pass  and  repass  between  Boston  and 
Charlestown,  co-extensive  with  the  right  of  the  old  ferry,  for  the 
term  of  seventy  years,  and  that  there  is  an  implied  contract  in 
those  acts,  that  the  public  should  not,  through  the  legislature, 
grant  authority  to  any  other  person  or  corporation  to  erect  anv 
bridge,  or  to  establish  any  other  mode  of  transportation,  so  near 
to  Charles  river  bridge  as  to  draw  from  it  any  portion  of  its  trav¬ 
el,  and  thereby  diminish  its  profits ;  and  that  the  act  incorporat- 


179 


ing  the  proprietors  of  Warren  bridge  necessarily  having  this  ef¬ 
fect,  without  providing  any  indemnity  for  the  proprietors  of 
Charles  river  bridge,  is  void  by  the  constitution  of  the  United 
States,  which  inhibits  any  state  from  making  or  passing  any  law 
which  shall  impair  the  obligation  of  contracts. 

These  two  propositions,  on  which  the  merits  of  the  bill  rest, 
are  in  some  measure  distinct  in  their  character,  as  they  are  re¬ 
ferred  for  their  support  to  the  different  constitutions  of  the  Uni¬ 
ted  States  and  the  commonwealth,  but  the  same  general  princi¬ 
ples  seem  necessarily  involved  in  both  ;  or  at  least  both  of  them, 
to  my  mind,  seem  to  be  equally  affected  by  the  provision  of  the 
constitution  of  the  United  States.  If  by  virtue  of  the  legislative 
acts,  and  the  supposed  succession  to  the  rights  of  the  college  by 
virtue  of  those  acts,  a  property  was  acquired  in  the  franchise  of 
toll  to  the  extent  contended  for  in  the  first  proposition,  it  is  be¬ 
cause  these  acts  assume  the  character  of  a  grant  or  contract  to 
that  effect ;  and  then  a  subsequent  grant  to  another  corporation, 
inconsistent  with  the  right  so  acquired  by  the  first,  unless  in  a 
form  warranted  by  the  constitution,  would  be,  directly  or  indirect¬ 
ly,  but  necessarily,  to  impair  the  obligation  of  the  first  contract, 
and  so  would  fall  within  the  prohibition  of  the  constitution  of  the 
United  States,  as  well  as  within  the  10th  article  of  the  declara¬ 
tion  of  rights  in  the  constitution  of  Massachusetts  ;  so  that  a  de¬ 
cision  on  either  branch  of  the  case  would  seem  to  me  liable  to  a 
revision  by  the  Supreme  Court  of  the  United  States,  within  the 
constitution  and  laws  providing  for  the  appellate  jurisdiction  of 
that  court. 

In  discussing  the  first  proposition,  it  seems  to  be  necessary  to 
consider  briefly  the  right  enjoyed  by  the  college  to  the  ferry, 
previous  to  the  act  of  1784,  by  which  the  building  of  Charles  river 
bridge  was  authorized  ;  and  then,  whether  by  virtue  of  that  act, 
that  right,  whatever  it  may  have  been,  was  transferred  or  passed 
over  to  the  proprietors  of  Charles  river  bridge. 

The  property  or  right  in  the  ferry  is  supposed  to  have  been 
granted  to  the  college,  by  the  existing  government  of  the  colony, 
in  the  year  1640  ;  which  was  two  years  after  the  establishment 
of  Harvard  College,  according  to  the  account  of  this  institution 
given  by  Hutchinson,  its  foundation  by  the  government  having 


180 


been  laid  two  years  before,  viz.  in  the  year  1638.  In  an  ordi¬ 
nance  respecting  the  college  it  is  recited,  that  “  for  the  encour¬ 
agement  of  the  college  this  court  hath  given  the  sum  of  400?. 
and  also  the  revenue  of  the  ferry  betwixt  Charlestown  and  Bos¬ 
ton. ”  This  I  should  judge  was  in  1638,  a  ferry  then  being  in 
existence  by  authority  of  the  colonial  government,  probably  un¬ 
der  lease  to  Converse,  it  appearing  to  have  been  leased  to  him 
in  that  year  by  some  agents  of  the  government.  This  first  grant 
to  the  college,  of  the  revenue  of  the  ferry,  perhaps  would  not  be 
construed  to  be  a  grant  of  the  ferry  itself  in  full  property,  but 
might  be  satisfied  by  leaving  the  property  and  right  and  the  whole 
control  to  the  government,  paying  over  to  the  treasury  of  the  col¬ 
lege  the  net  revenue  thereof. 

But  in  1640  a  direct  grant  of  the  ferry  itself  was  made  to  the 
college,  which,  according  to  the  usual  interpretation  of  the  simple 
terms  generally  made  use  of  in  public  proceedings  of  that  day, 
w’ould  be  construed  a  grant  of  the  ferry  itself  and  all  its  rights  to 
the  college  in  perpetuity,  unless  the  effect  should  be  found  to 
have  been  controlled  or  restricted  by  contemporary  acts,  or  acts 
passed  soon  after,  showing  clearly  the  intent  of  the  legislature  to 
have  used  the  term  grant  in  a  more  limited  sense.  The  words 
of  this  grant  are,  “  the  ferry  between  Boston  and  Charlestown  is 
granted  to  the  college.”  This  probably  was  intended  to  grant  to 
the  college  no  more  than  what  had  been  previously  granted,  that 
is,  the  revenue  of  the  ferry  or  the  profits  of  it ;  because  the  fer¬ 
ry  itself  was  at  that  time  in  the  hands  of  Converse  or  some  other 
lessee,  it  appearing  that  in  1637  power  was  given  to  the  gover- 
nour  and  treasurer  to  let  it  for  three  years,  and  Converse  being 
the  lessee  in  1638.  And  in  1640  authority  was  given  again  to 
let  it  on  the  expiration  of  Converse’s  lease.  And  that  this  was 
the  sense  in  which  the  grant  was  considered,  may  be  inferred 
from  the  ordinance  of  1650,  by  which  the  power  of  leasing  is 
given  to  the  college,  the  ferry  having  been,  until  that  time,  leased 
by  authority  from  the  government,  the  college  enjoying  undoubt¬ 
edly  the  rent.  And  in  1654,  “it  is  ordered  by  this  court  and 
the  authority  thereof,  that  besides  the  profit  of  the  ferry  formerly 
granted  to  the  college,  which  shall  be  continued,  there  shall  be 
levied,”  &c. 


181 


To  me  it  appears,  from  these  several  colonial  acts  respecting 
the  college  and  the  ferry,  that  the  absolute  property  in  the  ferry 
itself  was  not  intended  to  be  vested  in  the  college  ;  but  still,  as 
it  was  undoubtedly  intended  that  they  should  enjoy  the  revenue, 
and  as  they  did  enjoy  it,  under  various  modifications,  down  to  the 
time  of  the  incorporating  Charles  river  bridge,  it  would  be  con¬ 
sidered  that  the  government  charged  itself  as  trustee  of  the  fer¬ 
ry  for  the  benefit  of  the  college,  and  that  afterwards  they  relin¬ 
quished  this  trust,  and  the  college  thus  became  owners  of  the 
ferry,  subject  to  such  regulations  as  should  from  time  to  time  be 
made  by  the  legislature  for  the  public  accommodation  and  con¬ 
venience.  These  regulations  are  not  inconsistent  with  a  right 
of  property  in  the  college,  for  the  legislature  having  originally 
the  only  right  to  grant  the  exclusive  privilege  of  transportation 
over  public  waters,  and  to  establish  tolls,  &c.  the  grant  of  this 
privilege  would  always  be  considered  as  subject  to  the  superin¬ 
tendence  of  the  legislature,  unless  that  was  expressly  surren¬ 
dered. 

I  entertain  no  doubt,  therefore,  that  in  the  year  17S5,  Har¬ 
vard  College  was  the  proprietor,  in  the  sense  above  mentioned, 
of  the  ferry  between  Boston  and  Charlestown,  and  that  it  could 
not  constitutionally  have  been  taken  from  them  without  their 
consent. 

But  what  was  the  ferry-right  conferred  by  the  colonial  gov¬ 
ernment  on  Harvard  College  ?  Was  it  exclusive  along  the  whole 
shores  between  Boston  and  Charlestown,  or  limited  to  the  ferry- 
ways  as  they  existed  at  the  time  of  the  original  grant  ?  It  does 
not  appear  to  me  that  either  one  or  the  other  of  these  construc¬ 
tions  is  the  true  one. 

It  is  material  to  consider  the  state  of  things  at  the  time,  in 
order  to  ascertain  the  nature  and  extent  of  this  grant.  There 
was  pre-existing  a  ferry,  which  was  the  object  of  the  grant  ;  it 
was  in  the  hands  of  Converse  under  a  contract  with  the  govern¬ 
ment  ;  it  had  been  established  before  the  lease  to  Converse, 
and  all  the  subsequent  proceedings  must  be  supposed  to  have 
had  reference  to  the  ferry  as  at  first  established. 

The  first  we  learn  of  it  is  from  the  record  of  the  court  of 
assistants,  entered  November  9,  1630  ;  probably  the  first 


182 


act  of  legislation  by  the  new  government.  It  is  ordered,  “  that 
whoever  shall  first  give  in  his  name  to  Mr.  Governour,  that  he 
will  undertake  to  set  up  a  ferry  betwixt  Boston  and  Charlton, 
and  shall  begin  the  same  at  such  time  as  Mr.  Governour  shall 
appoint,  shall  have  Id.  for  each  person,”  he.  And  on  Novem¬ 
ber  5,  1633,  there  is  this  record  ;  “  Mr.  Richard  Brown  is  al¬ 
lowed  to  keep  a  ferry  over  Charles  river,  against  his  house,  and 
is  to  have  2d.”  he.  This  ferry  was  then  from  the  Charlestown 
side  only,  and  in  1635,  it  was  ordered  that  there  should  be  a 
ferry  set  up  on  the  Boston  side,  by  the  Wind-mill  lfill.  In 
1637  or  1638,  the  ferry,  that  is,  the  existing  ferry,  between 
Charlestown  and  Boston,  was  leased  to  Converse.  And  in 
1640  the  same  ferry,  that  is,  the  ferry  then  existing  between 
Charlestown  and  Boston,  is  granted  to  the  college. 

Now  I  am  not  able  to  gather  from  these  records,  any  thing 
like  an  exclusive  grant  to  the  college,  of  a  ferry  along  the  whole 
shore  of  the  two  towns.  It  was  exclusive  in  one  sense  ;  that  is, 
no  individual  could  set  up  another  ferry  without  the  license  of 
the  government,  who  had  the  ordering  and  disposition  of  all 
passages  over  public  waters  ;  but  I  think  the  government  itself 
was  not  precluded  from  establishing  another  ferry  between  Bos¬ 
ton  and  Charlestown  as  soon  as  the  population  of  either  town 
should  have  so  spread  as  to  have  rendered  it  highly  inconven¬ 
ient  to  be  confined  to  the  old  ferry.  If,  for  instance,  West 
Boston,  then  probably  a  waste,  had  in  twenty  years  afterwards 
become  as  populous  as  it  now  is,  and  a  ferry  from  a  southerly 
point  in  Charlestown  to  Barton’s  point  had  been  deemed  to  be 
for  the  public  convenience,  I  think  the  colonial  legislature  would 
not  have  hesitated,  and  I  think  that  they  need  not  have  hesitated, 
to  establish  such  a  ferry,  without  making  any  compensation  to 
the  old  ferry,  unless  an  actual  injury  was  thereby  done,  because 
they  had  done  nothing  in  their  former  grants  which  could  be 
fairly  construed  to  take  away  this  right.  They  granted  a  ferry 
between  Boston  and  Charlestown,  or  the  ferry  as  it  then  exist¬ 
ed  with  reference  to  the  actual  state  of  population  and  business, 
without  restraining  themselves  prospectively  from  providing  for 
future  exigencies. 


183 


They  certainly  did  not  mean  to  secure  to  the  owners  of  the 
ferry  the  right  to  transport  for  toll  all  who  should  have  occasion 
to  visit  Boston  through  Charlestown,  or  the  country  from  Bos¬ 
ton,  for  two  centuries,  and  as  much  longer  as  the  country  should 
endure.  They  were  providing  for  existing  necessities;  they 
were  desirous  of  adding  something  to  the  income  of  the  college, 
and  established  in  their  favour  this  easy  contribution  from  the 
people,  valued  at  about  40 l.  per  annum;  and  this  was  to  con¬ 
tinue  with  all  its  natural  increase  until  the  throng  of  passengers 
should  demand  another  ferry,  or  a  bridge,  or  some  other  mode 
of  transportation  ;  then,  if  it  became  necessary  to  destroy  the 
ferry,  they  would  have  been  bound  to  indemnify  the  college  for 
their  actual  loss  ;  or  if  they  diminished  their  income,  they  were  to 
make  it  good,  because  it  was  within  the  fair  construction  of  their 
grant,  that  they  would  do  nothing  to  defeat  it  or  diminish  its  ac¬ 
tual  value.  They  could  not  have  resumed  their  grant  of  the 
ferry,  without  paying  the  proprietors,  nor  could  they  indirectly 
destroy  its  value,  by  the  grant  of  another  ferry  so  near  as  to 
draw  away  its  custom.  But  had  the  public  interest  required 
that  a  bridge  should  be  erected  instead  of  a  ferry,  of  which 
public  interest  the  legislature  must  be  the  judge,  they  could 
consistently  with  public  justice  and  with  the  right  of  private 
property  have  made  this  change,  only  providing  for  a  just  com¬ 
pensation  to  the  proprietors,  for  the  value  of  the  property  as  it 
would  then  be  estimated.  This  restriction  upon  the  sovereign 
power  does  not,  I  apprehend,  depend  upon  any  limitation  of  its 
authority  by  written  constitution,  but  results  from  the  immuta¬ 
ble  principles  of  justice,  which  require  an  equal  contribution  to 
public  exigencies,  and  would  prohibit  the  sacrifice  of  the  pro¬ 
perty  of  one,  even  for  the  advantage  of  the  whole.  Such  prin¬ 
ciples  are  recognised  in  all  civilized  governments,  and  if  not  ex¬ 
pressly  declared,  are  practically  aeted  upon.  2  Kent’s  Com. 
270.  I  speak  of  acts  of  the  government  the  direct  and  imme¬ 
diate  effect  of  which  is  the  destruction  of  private  property,  or  the 
appropriation  of  it  to  public  use.  There  are  cases  of  a  ques¬ 
tionable  nature,  where  great  private  loss  may  be  the  conse¬ 
quence  of  some  public  act  for  the  general  good,  which  do  not 
fall  within  this  principle. 


184 


It  is  the  right  and  the  duty  of  all  governments,  especially 
those  over  new  countries,  to  facilitate  the  intercourse  of  busi¬ 
ness  between  its  subjects  by  opening  new  roads  and  construct¬ 
ing  new  avenues  as  the  population,  and  the  consequent  demands 
for  such  improvements,  shall  increase.  In  doing  this  it  will 
often  happen,  that  estates  upon  old  roads  are  diminished  in 
value  ;  the  seat  of  business  may  he  transferred  from  one  town 
or  village  to  another  ;  inns  and  stores,  erected  with  a  view  to 
the  travel  or  business  as  it  exists,  may  become  deserted  and  of 
little  value;  but  the  proprietors  would  have  no  claim  upon  the 
government  for  redress,  for  it  is  necessarily  one  of  the  contin¬ 
gencies  on  which  property  is  acquired  and  held,  that  it  is  liable 
to  be  impaired  by  future  events  of  this  kind. 

The  whole  history  and  policy  of  this  country  from  its  first 
settlement,  furnish  instances  of  changes  and  improvements,  the 
effect  of  which  has  been  to  transfer  the  aascititious  value  of  real 
estate  in  one  town,  resulting  from  its  favourable  position  for  trade, 
to  another,  which,  by  alteration  of  roads,  erection  of  bridges,  or 
more  recent  interior  settlements,  has  taken  its  place  as  a  thor¬ 
oughfare,  or  as  a  place  of  transit  or  deposit  for  articles  of  mer¬ 
chandise.  Losses  of  this  kind  never  have  been,  and  probably 
never  will  be  compensated  ;  nor  can  compensation  be  reasonably 
expected  by  the  sufferers,  any  more  than  by  the  dealers  in  any 
branch  of  trade  or  in  any  mechanical  employment,  who  find 
their  profits  and  emoluments  diminished  and  sometimes  destroy¬ 
ed  by  the  change  of  fashion,  or  by  new  inventions  for  carrying 
on  the  same  branch  of  business  in  a  cheaper  and  more  accepta¬ 
ble  manner.  Such  losses  are  the  effect  of  the  general  system 
of  legislation  upon  subjects  of  this  nature,  adopted  in  the  early 
part  of  our  history,  and  constantly  practised  through  all  the 
changes  of  government ;  so  that  property  is  in  fact  held  upon 
a  tenure  which  admits  of  its  deterioration  in  value  from  causes 
of  this  kind. 

And  l  confess  I  do  not  see  why  the  same  principles  do  not 
apply  to  property  in  ferries  and  bridges  to  a  considerable,  if  not 
to  the  whole  extent.  Ancient  ferries  held  by  prescriptive  title, 
if  there  be  any  such  in  this  commonwealth — which  may  be 
doubted,  as  it  is  well  known  that  the  government  originally  as- 


185 


sumed  the  right  to  establish  and  regulate  them,  either  by  the  di¬ 
rect  act  of  the  legislature,  or  by  the  power  delegated  to  courts  of 
sessions  or  towns,  and  therefore  their  title  may  be  found  on 
record — ancient  ferries  held  by  individuals  may  be  subject  to 
the  rules  of  the  common  law,  qualified  by  the  usages,  and  the 
general  legislative  provisions  of  this  commonwealth,  or  of  the 
antecedent  governments.  Certainly  the  proprietors  may  main¬ 
tain  their  rights  against  individuals  who  invade  them  without  au¬ 
thority,  by  the  application  of  those  rules. 

By  the  common  law,  if  there  be  an  ancient  ferry  and  another 
be  set  up  near  to  it,  so  that  its  profits  be  diminished,  an  action 
will  lie  for  damages,  and  probably  also  the  use  of  the  new  fer¬ 
ry  may  be  restrained  by  injunction  from  chancery. 

I  imagine  the  mere  fact  of  diminution  of  toll  to  the  ancient 
ferry  would  not  prove  the  new  ferry  to  be  a  nuisance,  if  it  were 
set  up  under  license  of  the  government.  It  must  in  a  positive 
sense  be  near  to  the  old  ferry,  and  not  merely  so  near  as  to  draw 
away  some  of  the  custom  ;  for  that  may  happen  if  the  ferries 
are  five  miles  apart.  This  is  the  doctrine  of  the  books,  though 
it  is  sometimes  held,  that  if  the  new  ferry  only  be  so  near  as  to 
produce  the  injury,  it  is  a  nuisance.  This  latter  doctrine  cer¬ 
tainly  could  never  have  been  received  in  this  country.  Ferries 
were  first  established  to  accommodate  the  inhabitants,  who  were 
generally  settled  on  the  shores  of  bays  or  creeks,  or  on  the 
banks  of  rivers.  They  were  connected  with  roads  leading  to 
some  market  town,  and  settlers  in  the  interior  were  obliged 
often  to  go  by  circuitous  routes  in  order  to  cross  a  river,  or 
other  water  obstruction,  by  a  ferry.  As  the  population  in¬ 
creased  in  the  country,  new  and  more  direct  routes  would  be 
explored  to  the  sea-ports,  and  they  would  come  to  the  river  sev¬ 
eral  miles  above  or  below  the  ferry.  A  new  ferry  or  a  bridge 
in  the  line  of  the  new  route  would  be  demanded  for  common 
convenience  and  necessity,  but  thereby  the  profits  of  the  old 
ferry  might  be  materially  diminished.  Cannot  the  public  au¬ 
thorities  establish  such  a  necessary  accommodation  without 
making  compensation  for  the  loss  ?  I  think  the  answer  must  be 
in  the  affirmative. 


24 


186 


I  have  seen  no  case  which  denies  this  right,  but  several  which 
recognise  the  principle.  The  case  of  Chadwick  v.  The  Pro¬ 
prietors  of  Haverhill  Bridge,  does  not  contradict  it.  Chad¬ 
wick’s  ferry,  as  stated  in  the  account  of  the  case  given  by 
Mr.  Dane  in  his  Abridgment,  was  ancient ;  the  bridge  was 
built  within  forty  rods.  Upon  Chadwick’s  representation  to 
the  legislature,  provision  was  made  for  his  indemnity  by  coni' 
missioners.  He  preferred  an  action  at  common  law,  which  was 
submitted  to  reference,  and  an  indemnity  was  awarded  to  him. 
There  was  no  decision  of  the  Court,  but  it  may  be  inferred  that 
the  action  was  considered  as  rightly  brought.  As  that  is  the 
only  case  to  be  found  on  our  judicial  records,  it  is  unfortunate 
there  was  no  discussion  of  principles.  All  we  can  know  is,  that 
by  the  erection  of  the  bridge,  the  ferry  was  entirely  destroyed, 
and  that  upon  such  a  question  it  was  intimated  by  the  Court, 
that  a  party  so  situated  had  a  right  to  his  trial  by  jury.  Wheth¬ 
er  the  nearness  of  the  bridge  to  the  ferry,  and  the  consequent 
abolition  of  the  ferry,  was  not  the  material  fact  on  which  the 
cause  turned,  does  not  appear,  or  whether,  if  the  bridge  had 
been  authorized  a  mile  above  or  below  the  ferry  instead  of  forty 
rods,  an  indemnity  would  have  been  thought  necessary,  cannot 
be  ascertained.  At  most,  the  case  is  authority  only  for  a  de¬ 
cision,  that  if  a  bridge  be  built  by  license  of  the  legislature  with¬ 
in  forty  rods  of  an  ancient  ferry  over  the  same  river,  the  pro¬ 
prietor  of  the  latter  is  entitled  to  indemnity. 

In  the  case  of  Tripp  v.  Frank,  the  plaintiff  was  lessee  of  the 
corporation  of  Kingston  upon  Hull,  of  a  ferry  which  the  corpo¬ 
ration  held  by  prescription,  between  Hull  and  Barton,  on  the 
opposite  coast,  at  the  distance  of  seven  miles.  The  defendant 
carried  persons  at  several  times  in  his  own  boat  from  Hull  to 
Barrow,  which  is  two  miles  lower  down  the  Humber  than  Bar¬ 
ton.  The  court  held  that  the  action  could  not  be  sustained,  un¬ 
less  the  object  of  the  passenger  was  to  get  to  Barton  by  the 
way  of  Barrow,  and  so  the  transportation  by  the  defendant  was 
in  fraud  of  the  ferry. 

This  case,  though  it  recognises  the  general  principle  of  the 
common  law  in  regard  to  ferries,  yet  is  pregnant  with  qualifica¬ 
tions  which  are  exceedingly  important  in  the  consideration  of 


187 


this  subject.  It  is  stated  in  the  case,  that  there  was  no  other 
ferry  on  the  Lincolnshire  coast  upon  the  river  Humber ;  conse¬ 
quently  all  who  would  pass  from  Hull  to  the  other  side  of  the 
river  for  a  great  distance,  would  be  obliged  to  cross  this  ferry, 
unless  private  persons  should  accommodate  them  with  a  pas¬ 
sage  in  their  boats.  Of  course  such  accommodation  would 
materially  affect  the  profits  of  the  ferry  ;  but  it  was  held  unrea¬ 
sonable  to  require  that  persons  going  to  Barrow  should  be 
obliged  to  land  at  Barton  and  go  from  thence  two  miles  by  land 
down  the  river  to  Barrow.  For  the  same  reason  it  must  have 
been  held,  that  persons  might  be  transported  from  Barrow  to 
Hull,  without  going  to  Barton  to  take  the  ferry  there.  The 
plaintiff’s  right  of  ferry  exclusive  was  only  betwixt  Hull  and 
'  Barton.  Hull  is  a  place  of  great  business,  with  a  population  of 
27,000.  Barton  lias  a  population  of  6000,  and  Barrow  some¬ 
what  short  of  2000.  Between  the  latter  place  and  Hull  there 
must  necessarily  be  great  intercourse,  Hull  being  a  great  mar¬ 
ket  town. 

Upon  this  principle,  the  transportation  of  persons  from 
Boston  to  Cambridge,  either  at  Cambridge  Port  or  at  Lechmere 
Point,  would  be  no  infringement  of  the  right  of  the  ferry  be¬ 
tween  Boston  and  Charlestown,  and  consequently  the  grant  of 
the  bridges  in  these  several  places  could  not  be  questioned 
on  the  ground  of  interference  with  their  right. 

I  should  further  infer,  that  a  ferry  from  the  southerly  part 
of  Charlestown  to  Barton’s  point  in  Boston,  might  have  been 
established  without  any  right  in  the  proprietors  of  the  old  ferry 
to  complain,  because  there  is  a  grant  of  a  ferry  or  the  ferry 
then  existing,  between  Charlestown  and  Boston,  which  was 
practically  limited  from  Charlestown  to  the  northerly  part  of 
Boston. 

The  case  here  commented  on  turned  principally  upon  the 
question  put  to  counsel,  whether  the  lessee  of  the  corporation 
was  obliged  to  carry  any  passenger  to  Barrow ;  and  upon  its 
being  answered  in  the  negative,  the  court  said  the  right  was 
commensurate  with  the  obligation.  So  in  the  case  supposed, 
it  is  clear  that  the  owners  of  the  ferry  could  not  be  obliged  to 
carry  persons  to  West  Boston,  and  therefore  they  had  no  right 
to  toll  from  persons  going  there. 


188 


If  it  should  be  said  that  this  case  recognises  an  exclusive 
right  in  the  corporation  of  Hull  to  transport  persons  from  one 
side  of  the  river  to  the  other  through  the  whole  extent  of  the 
two  opposite  towns  of  Hull  and  Barton,  and  that  the  right  of  the 
college  was  therefore  exclusive  between  Charlestown  and  Bos¬ 
ton,  I  should  say  they  proved  their  exclusive  right  by  prescrip¬ 
tion  and  usage,  and  the  right  of  the  college  depends  upon  the 
words  of  their  grant,  which  words  are  not  exclusive  ;  and  that 
Barton’s  point,  at  the  time  of  the  grant  to  the  college,  was  as 
distinct  from  Boston,  as  contemplated  by  the  colonial  govern¬ 
ment,  as  Barrow  is  from  Barton  ;  it  being  the  circumstances  of 
the  places  and  the  distance,  not  the  mere  fact  that  they  were 
distinct  towns,  which  governed  the  decision. 

And  the  same  qualifications  of  ferry  rights  were  adopted  on 
a  more  general  scale,  in  a  case  in  the  exchequer  in  the  year 
1659.  There  was  an  ancient  ferry  by  prescription  at  Bran¬ 
ford  in  Middlesex,  and  the  defendant  had  usually  in  his  boat 
ferried  over  persons  about  three  quarters  of  a  mile  from  the  old 
ferry  on  the  Thames,  to  the  prejudice  of  the  plaintiff’s  common 
ferry  ;  and  the  suit  wras  to  suppress  the  new  ferry.  The  court 
dismissed  the  bill,  saying  it  came  too  near  a  monopoly  and  re¬ 
strained  trade.  The  reporter,  Hardres,  subjoins  a  query,  but  it  is 
difficult  to  ascertain  whether  he  disputed  the  principle,  or  the 
application  of  it  to  that  particular  case.  He  cites  22  H.  6,  to 
support  his  query.  On  looking  at  the  case,  it  does  not  appear 
to  contradict  this  decision,  for  it  is  laid  down  by  two  judges  ar¬ 
guendo,  that  a  new  market  or  ferry  set  up  near  an  old  one, 
whereby  its  customary  profits  are  reduced,  would  be  a  nui¬ 
sance  ;  which  is  not  disputed.  Whether  a  distance  of  three 
quarters  of  a  mile  would  be  beyond  the  rights  of  the  old  ferry  or 
not,  does  not  appear. 

I  infer  from  these  cases  and  others  cited  in  the  argument, 
that  it  is  not  the  mere  diminution  of  profits  occasioned  by  a  new 
ferry,  which  constitutes  it  a  nuisance  to  the  old,  but  to  produce 
this  effect,  the  new  one  must  be  established  within  the  range  of 
the  exclusive  right  of  the  old  one,  which  is  to  be  settled  by 
proof  of  use  in  the  case  of  a  prescriptive  right,  and  by  the 
grant,  where  one  exists  ;  and  that  such  rights,  being  in  deroga- 


189 


tion  of  the  common  right  of  the  public,  must  be  construed  strict¬ 
ly.  Now  it  is  true,  that  until  the  year  1785  there  was  but  one 
ferry  between  Charlestown  and  Boston  ;  and  that  all  passengers 
to  and  from  these  towns  used  that  ferry  ;  so  that  if  the  college 
rested  upon  prescription  for  the  proof  of  its  right,  they  may 
have  had  some  claim  to  the  exclusion  of  any  other  ferry  or 
right  of  transportation,  as  was  the  case  of  Chadwick’s  ferry, 
and  the  ferry  between  Hull  and  Barton.  But  deriving  their 
right  under  a  grant  from  the  government,  which  is  not  exclusive 
in  its  terms,  they  are  limited  to  the  rights  conferred  by  the 
grant. 

But  it  is  said,  that  if  the  ferry  right  is  restricted  to  the  ferry- 
ways,  it  is  of  no  value,  for  the  value  of  the  franchise  depends 
upon  tolls,  and  these,  upon  passengers,  and  if  another  ferry 
could  be  set  up  along  side  of  theirs,  or  a  bridge  more  especially, 
their  franchise  is  destroyed. 

And  it  must  be  confessed,  such  is  the  consequence  of  the 
doctrine  I  have  advanced,  if  it  cannot  be  limited  by  some  sound 
rational  principle,  consistent  with  the  public  right  of  providing 
accommodation  for  the  citizen,  and  the  private  rights  of  the  cor¬ 
poration  under  their  grant.  I  think  I  can  discern  such  a  prin¬ 
ciple,  and  it  is  one  which,  in  my  mind,  influences  and  determines 
the  case  in  reference  to  the  second  ground  of  the  argument, 
which  is  founded  on  the  supposed  violation  of  the  constitution 
of  the  United  States. 

I  do  not  think  that  any  such  property  is  established  in  the  col¬ 
lege,  as  is  contemplated  in  the  10th  article  of  the  declaration  of 
rights  and  protected  from  public  appropriation  without  provision 
for  indemnity.  The  actual  property  is  only  in  the  loll  which  is  * 
earned  on  the  bridge,  and  in  the  franchise  of  the  bridge,  which  is 
the  right  to  obstruct  the  navigable  water,  and  to  take  toll  of  those 
who  pass  over.  An  act  of  the  legislature  requiring  the  toll  taken  to 
be  paid  into  the  public  treasury,  or  that  the  bridge  itself  should  be 
taken  to  the  use  of  the  public,  or  that  it  should  be  open  for  public 
use  without  any  toll,  would  come  within  the  terms  of  that  article. 
But  an  act  which  only  consequentially  injures  it,  would  not.  Still, 

1  think,  without  regard  to  that  article,  by  the  very  principles  of 
the  constitution,  and  the  nature  of  our  government,  the  legisla- 


190 


ture  are  prohibited  from  doing  other  acts  injurious  to  the  proper¬ 
ty  of  the  subject,  and  that  the  judicial  power  would  be  bound  to 
protect  the  subject  by  declaring  such  acts  void.  Suppose,  for 
instance,  the  legislature  should  grant  the  same  ferry  to  another, 
prohibiting  the  use  of  it  by  the  first  grantee  ;  there  would  be  no 
pretence  that  this  would  be  an  appropriation  to  public  use,  and 
yet  the  second  grant  would  be  void,  for  the  courts  would  de¬ 
clare,  that  the  public,  having  parted  with  their  right,  had  nothing 
to  grant.  This  would  be  decided  upon  the  principles  of  the 
common  law,  as  we  find  them  applied  to  the  grants  of  the  king. 
2  Bl.  Com.  37  ;  2  Rol.  Abr.  191,  Prerog.  U,  pi.  2.  Or,  if 
the  legislature  should  reduce  the  toll,  no  power  to  do  it  hav¬ 
ing  been  reserved  in  the  grant,  the  toll  could  nevertheless 
be  recovered  in  an  action  at  common  law,  on  the  ground  that 
the  act  of  the  legislature,  was  an  unwarrantable  interference  with 
private  property,' a  violation  of  their  own  contract  or  grant. 
Suppose  the  ferry  granted  for  a  term  of  years,  and  by  another 
act  it  was  made  to  terminate  in  a  less  time ;  the  ferry  would 
nevertheless  be  upheld  by  the  law,  during  the  term  of  the 
grant,  upon  the  same  ground,  that  the  legislature  had  no  right 
thus  to  interfere  with  private  property,  or  to  impair  the  obliga¬ 
tion  of  their  own  contract. 

This  principle  has  been  practically  applied  by  the  legislature 
itself  in  many  instances.  In  some  cases  the  legislature,  in 
the  grant  itself,  has  reserved  the  right  of  declaring  a  forfeiture 
upon  the  breach  of  conditions,  which  otherwise  could  only  be 
done  by  a  court  of  law  ;  in  others,  they  have  reserved  the  right 
of  regulating  or  reducing  the  toll  after  a  certain  number  of 
years.  These  provisions  show  the  sense  of  the  country  and  of 
the  successive  legislatures,  that  grants  from  the  public  to  indi¬ 
viduals  convey  rights  which  are  not  to  be  judged  of  and  vacated 
by  the  grantor,  unless  the  grant  itself  retains  such  power ;  if  it 
does,  then  it  is  by  consent  of  those  who  accept  such  grants. 

Another  thing  seems  to  me  to  appertain  to  grants  from  the 
public,  as  well  as  individuals  ;  which  is,  that  notwithstanding  it 
is  said  in  the  books  they  are  to  be  construed  strictly,  and  in  ca¬ 
ses  of  doubtful  construction,  in  favour  of  the  public,  yet  the  con¬ 
struction  is  to  be  reasonable  and  consistent  with  its  manifest 


191 


purposes  and  intent.  It  may  be  true,  as  is  stated  in  some  of 
the  English  books,  that  nothing  is  to  be  held  to  pass  by  impli¬ 
cation  only,  as  may  be  the  case  in  private  grants  ;  but  yet  the 
just  and  equitable  principle,  that  whatever  is  necessary  to  the 
profitable  use  of  the  thing  granted,  shall  be  considered  as  inhe¬ 
rent  in  the  grant,  will  apply  as  well  to  the  public,  being  grantor, 
as  to  a  citizen.  If  the  public  should  grant  the  right  to  cut  tim¬ 
ber  on  public  lands,  without  providing  in  the  grant  the  means  of 
ingress  or  egress  over  other  public  lands,  could  it  be  maintained 
that  the  grantee  would  be  a  trespasser  in  passing  over  such 
lands  necessarily,  in  order  to  get  at  or  draw  out  his  timber  ? 

If  the  doctrine  of  the  common  law  in  relation  to  grants  from 
the  king  should  be  otherwise,  I  think  it  would  not  be  applied  to 
a  grant  from  the  United  States  or  the  commonwealth.  It  would 
be  unreasonable  and  savour  strongly  of  partiality  for  the  govern¬ 
ment  in  its  contests  with  citizens.  I  admit,  that  where  the 
grant  of  the  public  is  clear  and  explicit  as  to  the  thing  grant¬ 
ed,  and  there  are  general  words  which  may  by  implication  carry 
other  things  if  the  grant  had  been  from  one  citizen  to  another, 
on  the  legal  maxim  that  the  words  are  to  be  taken  most  strongly 
against  the  grantor,  the  English  rule,  that  nothing  shall  pass  by 
implication,  may  apply.  But  as  to  the  inherent  qualities  of  a 
grant,  and  the  construction  of  it  in  relation  to  the  thing  clearly 
granted  and  its  necessary  attributes,  I  cannot  but  think  the  rule 
is  the  same  for  public  and  private  grants. 

Now  when  the  government  grants  a  ferry  or  any  other  fran¬ 
chise,  it  unquestionably  intends  to  grant  the  undisturbed  use  of 
it,  so  far  as  respects  any  acts  of  their  own  or  of  any  persons 
acting  under  their  authority.  The  very  grant  itself  contains  an 
implied  contract  or  covenant  to  this  effect.  It  is  the  very  es¬ 
sence  of  the  obligation.  Now  admitting  that  the  grant  of  the 
government  to  the  college  gave  no  exclusive  right  of  transporta¬ 
tion  of  passengers  &tc.  over  Charles  river  between  Charlestown 
and  Boston,  yet  I  think  it  gave  the  free  and  uninterrupted  right 
of  receiving  toll  from  all  persons  who  would,  in  the  usual  course 
of  travel,  cross  that  ferry,  and  that  the  government  contracted 
not  to  divert  the  passengers  into  any  other  route,  unless  the 
public  convenience  and  necessity  should  require  it ;  and  when 


192 


that  should  happen,  that  they  would  establish  the  new  route,  so 
as  to  do  the  least  possible  injury  to  the  pre-existing  right;  but 
in  doing  this,  if  it  were  necessary  to  destroy  the  old  ferry  or 
materially  and  essentially  to  diminish  its  value,  compensation 
should  be  made.  As,  for  instance,  should  they  determine  that 
another  ferry  should  be  established  within  ten  or  twenty  rods  of 
the  old  one,  and  in  consequence  the  profits  of  the  old  one  should 
be  reduced  one  half,  it  seems  to  me  indemnity  should  be  made, 
and  if  it  were  not,  the  proprietors  of  the  old  ferry  might  main¬ 
tain  an  action  for  damages  ;  but  if  it  should  happen  that  the 
new  accommodation  itself  caused  an  increase  of  travel,  so  that 
the  old  ferry  should  receive  its  usual  custom  and  profits,  not¬ 
withstanding  the  establishment  of  the  new  one,  there  would  be 
no  ground  of  action,  because  there  would  be  no  injury  :  and 
there  being  no  exclusive  right  to  all  the  ferrying  across  the  river, 
there  would  be  nothing  to  complain  of. 

This  appears  to  me  a' very  reasonable  doctrine;  but  I  confess 
I  am  not  able  to  adduce  any  authorities  in  support  of  it.  I 
ground  it  on  the  principles  of  our  government  and  constitution, 
and  on  the  immutable  principles  of  justice,  which  ought  to  bind 
governments  as  well  as  people. 

It  leaves  to  the  government  the  right  of  determining  what  the 
public  good  requires,  and  gives  security  to  the  citizen  against 
unequal  contributions  to  that  object.  It  maintains  the  faith  of 
government  in  its  contracts  with  and  grants  to  its  subjects,  with¬ 
out  restraining  the  proper  use  of  power  in  making  improve¬ 
ments,  which  change  of  times  and  circumstances  may  require. 
It  does  justice  to  the  public  and  the  citizen. 

If  it  be  said,  that  a  compensation,  founded  upon  the  actual 
state  of  profits  when  the  franchise  is  impaired,  is  not  complete 
indemnity,  because  the  proprietors  have  a  right  to  calculate 
upon  future  increased  profits,  I  answer,  that  actual  and  not 
speculative  loss  is  the  rule  of  damages  upon  a  breach  of  con¬ 
tract  between  man  and  man,  and  that  all  the  grantee  can  rea¬ 
sonably  calculate  upon  is  an  indemnity  for  actual  loss  occasion¬ 
ed  by  a  public  improvement.  It  is  upon  this  principle,  I  pre¬ 
sume,  that  the  legislature,  when  they  granted  authority  to  build 
the  bridge  at  the  place  where  the  ferry  had  been  kept,  found  it 


193 


necessary  to  make  provision  for  indemnity  to  Harvard  College ; 
for  thereby  the  ferry  was  destroyed,  and  this  might  have  been 
considered  an  appropriation  of  the  franchise  belonging  to  the 
college  to  the  public  use.  Had  no  provision  been  made  satis¬ 
factory  to  the  college,  they  could  have  maintained  their  action 
against  the  proprietors  of  the  bridge,  notwithstanding  the  license 
given  by  the  government.  The  bridge  would  have  been  a  nui¬ 
sance,  and  if  jurisdiction  over  nuisances  had  then  existed,  as 
now  by  virtue  of  the  late  act,  this  same  process  might  have 
been  maintained.  So  if  the  location  of  the  bridge  had  been  au¬ 
thorized  at  any  other  place,  within  the  range  of  the  ferry  right 
as  used,  so  that  the  travel  would  have  been  necessarily  diverted, 
essentially  diminishing  the  profits  of  the  ferry,  though  this  might 
not  be  an  appropriation  of  the  college  franchise  to  public  use, 
but  only  an  injury  consequential  to  the  exercise  of  a  right,  yet 
there  would  be  a  remedy,  because  it  would  be  a  violation  of  the 
implied  contract  contained  in  the  grant,  that  their  franchise 
should  not  be  disturbed  or  diminished  in  value,  even  for  the 
public  good,  without  making  them  whole  ;  and  in  order  to  come 
to  this  conclusion,  it  is  not  necessary  to  suppose  an  exclusive 
right  to  transportation  between  Charlestown  and  Boston,  but 
only  an  implied  stipulation  on  the  part  of  the  government,  that 
they  will  grant  no  other  similar  right,  to  the  necessary  and  es¬ 
sential  prejudice  of  the  pre-existing  grant. 

Now  it  is  perfectly  within  the  reason  of  this  principle,  that 
another  ferry  or  bridge  might  be  rgranted  between  Cambridge 
and  Boston,  either  from  Lechmere  Point  or  Cambridge  Port 
to  Barton’s  point,  without  making  any  compensation  to  the  pro¬ 
prietors  of  the  ferry,  because  it  was  not  even  by  implication 
covenanted  that  no  such  grant  should  be  made  ;  for  the  utmost 
limits  within  which  such  covenant  could  be  inferred  are  Charles¬ 
town  and  Boston.  Cambridge  and  Boston  are  therefore  excluded. 
So  that  to  whatever  extent  the  travel  to  Charlestown  square,  and 
so  over  the  ferry  to  the  northerly  part  of  Boston,  might  be  divert¬ 
ed  by  means  of  a  bridge  or  ferry  from  any  part  of  Cambridge  to 
Boston,  I  think  there  could  be  no  just  ground  of  complaint.  Such 
was  the  opinion  of  the  legislature  in  regard  to  the  claim  of  rights 
on  the  part  of  the  proprietors  of  Charles  river  bridge  when  the 

25 


194 


grants  of  West  Boston  bridge  and  of  Canal  bridge  were  made  ; 
therefore,  when  they  made  provision  for  an  extension  of  the 
time  of  Charles  river  bridge  in  the  act  incorporating  West  Bos¬ 
ton  bridge,  it  ought  to  be  considered,  according  to  the  terms  of 
the  grant  itself,  that  it  was  not  yielded  as  a  matter  of  right,  as 
compensation  for  an  injury,  but  only  as  a  gratuity.  As  such 
however,  being  founded  upon  an  acknowledgment  of  a  merito¬ 
rious  consideration,  it  is  to  have  the  same  construction  and  ef¬ 
fect  as  if  granted  as  a  matter  of  right. 

It  follows  from  this  course  of  reasoning,  to  be  my  opinion, 
that  such  were  the  rights  of  the  proprietors  of  the  ferry,  that  an 
act  passed  in  the  year  1785,  authorizing  the  erection  of  a 
bridge  from  Charlestown  to  Boston  in  the  line  of  the  present 
Warren  bridge,  having  the  effect,  which  would  have  been  inevi¬ 
table,  of  rendering  the  ferry  wholly  useless,  would  have  been 
void,  as  impairing- the  obligation  of  a  contract,  without  a  proper 
provision  for  indemnity.  I  think  that  granting  a  free  bridge 
any  where  within  the  range  of  the  ferry  right,  without  compen¬ 
sation,  would  be  void  upon  this  principle,  because  it  would  ab¬ 
solutely  destroy  the  franchise  of  the  ferry.  And  so  the  estab¬ 
lishing  a  ferry  or  bridge  at  a  less  toll  than  was  enjoyed  by  the 
ferry,  because  the  effect  would  be  the  same.  The  remedy  by 
action  would  give  damages  proportionate  to  the  injury,  and  upon 
a  bill  in  equity  it  would  not  be  necessary  to  abate  the  bridge  as 
a  nuisance,  if  the  damage  was  not  so  great  as  to  require  such  a 
procedure. 

This  long  discussion  of  the  rights  of  the  ferry  may  seem  in¬ 
appropriate,  when  I  declare  that  I  am  not  satisfied  that  such 
rights,  whatever  they  may  be,  have  been  transferred  by  the  col¬ 
lege  to  the  plaintiffs.  On  this  point  I  concur  with  my  brothers 
Wilde  and  Morion,  who  have  expressed  themselves  fully  upon 
it.  But  as  the  same  reasoning  will  apply  to  the  rights  of  the 
plaintiffs  derived  from  the  act  of  the  legislature  under  which 
they  erected  the  bridge,  there  is  no  need  of  repetition. 

In  considering  this  question  I  shall  confine  myself  to  the  act 
itself,  as  the  origin  of  the  plaintiffs’  right,  taking  the  8th  section 
of  the  act  of  1791,  incorporating  the  proprietors  of  West  Bos¬ 
ton  bridge,  as  a  part  of  it,  so  that  the  franchise  should  be  taken 


195 


to  be  for  seventy  years,  instead  of  forty,  as  provided  by  the  first 
act,  the  legislature  of  that  year  having  in  effect  determined  that 
it  was  reasonable  that  their  charter  should  continue  so  long. 

There  is  a  very  remarkable  omission  of  any  enacting 
clause  in  the  statute  of  1784  declaring  any  purpose  for  which 
the  corporation  was  created.  In  the  title  of  the  act,  and  in 
the  preamble  to  the  first  section,  can  be  found  the  intention  of 
the  legislature.  There  is  a  difference  in  the  proposed  object  of 
the  incorporation  as  it  appears  expressed  in  the  title  and  in  the 
preamble.  It  is  not  common  to  recur  to  the  title  for  an  ex¬ 
planation  of  the  act,  though  it  is  sometimes  done  ;  the  pream¬ 
ble  used  to  be  called  the  key  to  the  statute,  but  these  keys 
have  of  late  been  omitted.  Still,  however,  it  is  fair  to  consider 
this  preamble  as  an  enacting  clause,  for  the  sake  of  giving  effi¬ 
cacy  to  a  statute  which  created  important  rights,  and  which  has 
frequently  since  been  recognised  as  such  by  successive  legis¬ 
latures. 

The  words  of  the  preamble  are,  “  Believing  the  erecting  of 
a  bridge  over  Charles  river  in  the  place  ivhere  the  ferry  be¬ 
tween  Boston  and  Charlestown  is  now  kept,  will  be  of  great 
public  utility,  and  Thomas  Russell  esquire  and  others  having 
petitioned  this  court  for  an  act  of  incorporation  to  empower  them 
to  build  said  bridge,”  therefore,  &c.  Section  1.  creates  a  cor¬ 
poration  with  the  name  of  “  The  Proprietors  of  Charles  river 
bridge.”  Sect.  2.  authorizes  certain  of  the  proprietors  to  call 
a  meeting,  for  the  making  of  by-laws,  &c.  Sect.  3.  establishes 
the  rate  of  toll,  and  limits  the  grant  to  forty  years  after  the 
opening  of  the  bridge.  Sect.  4.  prescribes  the  manner  in  which 
the  bridge  shall  be  built.  Sect.  5.  provides  the  annuity  of 
200Z.  to  Harvard  College,  and  that  the  bridge  shall  revert  to 
and  be  the  property  of  the  commonwealth,  saving  to  the  col¬ 
lege  a  reasonable  and  annual  compensation,  for  the  annual  in¬ 
come  of  the  ferry,  which  they  might  have  received  had  not  the 
bridge  been  erected.  Sect.  6.  gives  three  years  for  the  build¬ 
ing  of  the  bridge. 

The  act  is  entitled,  “  An  act  for  incorporating  certain  persons 
for  the  purpose  of  building  a  bridge  over  Charles  river  be¬ 
tween  Boston  and  Charlestown,”  &c. 


196 


Had  there  been  an  enacting  clause  in  these  words,  without 
any  provisions  in  the  act  tending  to  restrain  their  sense,  there 
might  have  been  room  to  contend  that  the  proprietors  were 
authorized  to  place  their  bridge  any  where  between  the  two 
towns,  and  from  thence  might  be  inferred  an  intent  on  the  part 
of  the  legislature  to  grant  an  exclusive  right ;  but  the  preamble 
which  comes  after  the  title,  and  so  ought  to  be  considered  as 
explanatory  of  the  general  words  in  the  title,  and  especially  as 
it  professes  to  set  forth  the  cause  and  the  object  of  the  grant, 
limits  the  position  of  the  bridge  to  the  place  where  “  the  ferry 
between  Boston  and  Charlestown  is  now  kept ;  ”  so  that  no 
authority  was  given  to  obstruct  the  river  by  a  bridge  in  any 
other  place  between  the  two  towns. 

There  is  nothing  in  any  part  of  the  statute,  from  which  an 
exclusive  right  to  any  thing  beyond  the  limits  of  the  bridge  can 
be  inferred.  It  is  simply  the  grant  of  a  license  to  build  a 
bridge  in  the  place  prescribed,  with  the  right  to  take  toll  from 
all  persons  and  property  which  should  pass  over  it  during  the 
continuance  of  the  grant. 

The  legislature  had  the  supreme  control  of  all  other  parts  of 
the  river,  so  that  any  obstruction  to  vessels  and  boats  other 
than  that  caused  by  a  bridge  extending  across  on  the  line  of 
the  ferry,  would  have  been  a  public  nuisance  which  any  one 
might  remove. 

Further  right  might  be  granted  by  the  legislature  to  obstruct  the 
river  by  wharves  or  bridges,  so  that  the  erection  of  them  would 
not  be  deemed  public  nuisances.  The  Warren  bridge,  there¬ 
fore,  built  under  the  act  of  1827,  is  not  a  public  nuisance,  for 
it  is  authorized  by  the  sovereign  power  of  the  state  to  whose 
control  the  public  waters  belong. 

But  an  erection  which  is  not  a  public  nuisance  because  it  is 
authorized  by  the  public,  may  be  to  the  injury  of  private  per¬ 
sons  or  corporations,  and  so  become  a  private  nuisance  ;  as  at 
the  common  law,  a  ferry  granted  by  the  king  which  is  to  the 
prejudice  of  an  ancient  ferry  held  by  prescription,  or  a  market 
which  interferes  with  a  pre-existing  market.  F ranchises  so 
granted  will  be  vacated,  or  the  proprietor  of  those  which  may 
be  thus  injured  may  maintain  his  action  against  the  disturber, 


197 


notwithstanding  he  holds  the  patent  of  the  king  from  whom 
such  franchises  are  held  to  flow ;  and  this,  although  there  should 
be  no  express  saving  of  pre-existing  rights.  For  it  is  held, 
that  although  such  patents  usually  are  upon  condition  express, 
that  they  shall  be  of  no  injury  to  any  other  person,  lta  quod 
non  sit  ad  nocumentum,  &c.  yet  that  condition  is  implied,  if  not 
expressed.  2  Inst.  406  ;  2  Saund.  172.  And  this  must  be 
on  the  principle,  that  the  contract  created  by  the  grant  cannot 
be  annulled  or  impaired  by  any  act  of  the  grantor ;  who  is  in 
such  cases  the  king,  as  representing  by  his  prerogative  the  pub¬ 
lic,  in  the  same  manner  that  our  legislature  does. 

Now  it  appears  to  me,  that  this  just  and  equitable  principle 
is  applicable  to  grants  made  by  our  legislature,  and  public  faith 
and  honour  require  that  it  should  be  so  considered. 

The  legislature  grant  a  township  of  land,  and  afterwards 
make  another  grant  of  the  same  land  ;  this  latter  would  be 
void,  as  before  shown.  So  if  they  make  a  second  grant  of  the 
same  franchise.  And  by  the  constitution  of  the  United  States, 
they  not  only  cannot  annul,  repeal  or  destroy  their  grant  or  con¬ 
tract,  but  they  cannot  impair  its  force  or  obligation. 

Now  what  is  the  contract  made  by  the  public,  by  its  agent, 
the  legislature,  with  the  proprietors  of  Charles  river  bridge  ? 

1.  They  shall  have  a  bridge  for  seventy  years  across  Charles 
river,  in  the  ■place  where  the  ferry  between  Boston  and  Charles¬ 
town  is  now  kept. 

2.  They  shall  receive  during  that  term  a  toll  fixed  in  the 
grant,  from  all  passengers,  carriages,  &c,  which  go  over  their 
bridge. 

At  the  time  of  making  this  grant  there  was  a  ferry,  over 
which  all  persons  were  carried  who  had  occasion  to  pass  be¬ 
tween  Boston  and  Charlestown. 

It  must  have  been  understood  when  the  bridge  was  opened 
for  travel,  and  the  ferry  ceased,  that  these  passengers  would  pass 
over  the  bridge  and  pay  their  toll  there.  This  toll  was  the  con¬ 
sideration  on  which  the  proprietors  undertook  to  build  the 
bridge,  and  to  pay  the  annuity  provided  in  the  act  for  Harvard 
College.  Could  the  legislature  consistently  with  their  grant 
have  the  next  year  granted  another  bridge  parallel  with  the 


198 


first,  and  opened  it  to  public  travel  free  of  toll  ?  The  answer 
must  be  in  the  negative  ;  unless  they  re-imbursed  all  the  expense 
incurred ;  for  this  would  be  in  effect  to  resume  their  grant, 
which  it  is  agreed  they  could  not  do.  In  the  first  grant  they 
give  a  right  to  toll  from  all  persons  who  should  pass  the  bridge, 
and  persons  going  to  and  from  Boston  and  Charlestown  would 
pass  the  bridge  and  pay  toll.  But  they  afterwards  provide 
means  of  transportation  for  the  same  persons,  free  of  toll,  and 
the  necessary  consequence  is,  that  the  first  bridge  is  deserted. 
Now  it  seems  to  me,  that  by  this  the  obligation  of  their  con¬ 
tract  is  impaired,  for  that  obligation  is,  that  they  will  do  no  act 
whereby  prejudice  shall  come  to  the  first  grantees.  But  here 
it  will  be  said,  that  the  public  convenience  may  require  the  es¬ 
tablishment  of  a  free  bridge ;  that  the  people  are  poor  and 
cannot  afford  to  pay  toll  ;  that  the  legislature  is  the  judge  of 
what  the  public  interest  requires,  and  it  is  their  duty  to  provide 
for  it.  To  all  this  I  agree  ;  but  then  I  say  it  only  varies  the 
quality  of  the  contract.  The  grant  being  of  the  bridge  with 
the  right  to  transport  those  who  have  occasion  to  go  to  Boston 
or  Charlestown,  the  contract  of  the  government  is,  that  this 
right  shall  not  be  disturbed  or  impaired,  unless  public  necessity 
demand,  and  if  it  shall  demand,  the  grantees  shall  be  indem¬ 
nified. 

Such  a  contract  as  this,  is  founded  upon  the  principles  of 
our  constitution,  as  well  as  of  natural  justice,  and  it  cannot  be 
impaired  without  a  violation  of  the  constitution  of  the  United 
States  :  and  I  think  also  it  is  against  the  principles  of  our  state 
constitution. 

To  prevent  misconception,  I  will  add,  that  1  apply  this  rea¬ 
soning  only  to  cases  which  come  clearly  within  the  contract 
which  results  from  the  grant.  The  grant  relates  only  to  a 
bridge  between  Boston  and  Charlestown,  and  there  is  no  im¬ 
plied  covenant  or  agreement  that  there  shall  not  be  another 
bridge  between  any  other  town  and  Boston  ;  and  if  by  reason 
of  such  other  bridge  the  travel  over  Charles  river  bridge  should 
be  diminished  and  its  toll  reduced,  the  loss  would  be  consequen¬ 
tial  upon  the  exercise  of  a  public  right  not  in  any  degree  con¬ 
trolled  or  restrained  by  the  prior  grant. 


199 


But  let  us  look  at  the  act  incorporating  the  proprietors  of 
Warren  bridge,  and  see  whether  it  does  or  does  not  impair  the 
obligation  of  the  contract  with  the  proprietors  of  Charles  river 
bridge. 

That  contract  I  have  stated  to  be,  that  they  should  continue 
a  corporation  for  seventy  years,  with  the  right  to  take  toll  from 
all  persons,  Sic.  who  should  pass  over  their  bridge  to  and  from 
Boston  and  Charlestown,  and  that  the  grantors  will  do  nothing 
to  impair  this  right  or  diminish  the  value  of  it,  unless  the  pub¬ 
lic  convenience  or  necessity  should  require,  and  if  such  ne¬ 
cessity  arose,  the  grantees  should  be  indemnified. 

The  act  of  1827  authorizes  the  building  of  a  bridge  over 
Charles  river  between  Charlestown  and  Boston,  beginning  at 
or  near  Harris’s  wharf  in  Charlestown,  and  ending  upon  cer¬ 
tain  new-made  land  in  Boston  :  and  the  bridge  is  actually  erect¬ 
ed  within  from  ten  or  fifteen  rods  of  Charles  river  bridge  on 
the  Charlestown  side,  and  about  fifty  rods  on  the  Boston  side. 
It  receives  the  travel  from  Charlestown  square,  which  before 
this  act  discharged  itself  by  one  avenue  only,  over  Charles 
river  bridge,  and  it  conveys  the  passenger  in  a  direct  line  to 
the  market  place  in  Boston,  which  was  a  principal  object  of 
travellers  over  Charles  river  bridge.  The  necessary  and  un¬ 
avoidable  consequence  is,  the  taking  from  Charles  river  bridge 
a  large  portion  of  its  toll,  and  giving  it  to  the  proprietors  of 
Warren  bridge  to  re-imburse  them  for  the  expense  of  erecting 
their  bridge.  It  is  an  admitted  fact,  that  from  one  half  to  two 
thirds  of  the  toll  of  Charles  river  bridge  has  been  withdrawn. 

There  is  nothing  in  the  act  which  bears  a  semblance  of  in¬ 
demnity  to  the  proprietors  of  Charles  river  bridge,  but  the 
reduction  of  the  annuity  to  the  university  ;  but  this  can  have 
no  effect,  for,  in  the  first  place,  it  falls  vastly  short  of  indemnifi¬ 
cation,  and  then  the  government,  as  contractor,  would  have  no 
right  to  be  its  own  measurer  of  damage. 

I  make  no  account  of  the  offers  made  by  the  proprietors  of 
Charles  river  bridge  to  make  such  alterations,  additions  and 
improvements  as  might  comport  with  the  supposed  demands  of 
public  convenience  or  necessity.  It  was  certainly  within  the 
discretion  of  the  legislature  to  accept  or  reject  their  offers.  If 


200 


they  came  to  the  determination  that  the  new  bridge  was  neces¬ 
sary,  or  that  the  safety  or  convenience  of  the  people  required 
it,  they  might  build  it  at  the  public  expense,  or  authorize  indi¬ 
viduals  or  a  corporation  to  do  it.  Not,  however,  in  my  opinion, 
without  an  indemnity  agreed  upon,  or  some  constitutional  pro¬ 
vision  to  assess  it,  because  it  directly  trenches  upon  the  income 
and  profits  of  the  old  bridge,  and  not  merely  as  a  consequence 
of  alterations  or  improvements  not  in  themselves  affected  by 
any  previous  contract. 

By  this  course  of  reasoning  my  mind  is  brought  to  the  con¬ 
clusion,  that  the  act  incorporating  the  proprietors  of  Warren 
bridge,  in  so  far  as  it  authorizes,  and  by  its  necessary  operation 
occasions  the  diversion  of  travel  and  toll  from  Charles  river 
bridge,  is  void,  and  that  the  proprietors  of  the  latter  bridge  are 
entitled  to  relief.  In  what  form  that  relief  should  be  awarded 
it  is  immaterial  now  to  determine,  as  no  decree  for  relief  can 
be  passed.  There  will  be  a  decree  against  the  plaintiffs,  in  or¬ 
der  that  they  may  avail  themselves  of  the  right  secured  by  the 
constitution  and  laws,  of  a  revision  by  the  Supreme  Court  of 
the  United  States,  where  it  is  highly  proper  that  this  question, 
depending,  as  I  think  it  does,  mainly  upon  the  constitution  of 
the  United  States,  should  be  ultimately  decided. 

I  am  aware  of  objections  that  may  be  made  to  the  opinion 
which  I  have  adopted,  that  its  tendency  would  be  to  check  and 
impede  public  improvements,  because  the  public  will  not  en¬ 
courage  them  if  they  should  be  subject  to  the  expense  of  re¬ 
imbursing  those  who  suffer.  But  this  evil  cannot  be  very  ex¬ 
tensive  .within  the  limitations  which  I  have  suggested  ;  certainly 
less  than  if  it  is  to  be  understood,  that  the  legislature,  having 
made  a  grant  of  a  franchise,  may  directly  or  indirectly  resume 
or  impair  it- 

It  will  be  said  also,  that  it  is  contrary  to  the  policy  and  prac¬ 
tice  of  the  commonwealth  to  make  reparation  for  losses  occasion¬ 
ed  by  turnpike  roads,  bridges,  canals,  &c.  except  for  property 
actually  taken  for  their  use.  I  should  answer  that  no  case  like 
the  one  before  us  has  occurred.  In  those  which  most  resem¬ 
ble  it,  such  as  West  Boston  bridge,  Chelsea  bridge,  Beverly 
bridge,  Haverhill  bridge,  &c.  an  indemnity  probably  satisfactory 
to  the  parties,  has  been  provided  for. 


201 


There  are  others  of  a  strong  character  which  have  been  left 
without  indemnity ;  the  most  extraordinary  of  which  is  the 
case  of  South  Boston  bridge,  which  has  been  entirely  destroyed 
by  the  free  bridge  from  South  Boston  to  Boston.  There  is 
reason  to  believe,  however,  that  the  persons  principally  interest¬ 
ed,  acquiesced  in,  if  they  did  not  assist  to  procure  the  grant  of 
the  free  bridge.  At  any  rate,  there  does  not  appear  to  have 
been  any  remonstrance  to  the  legislature  by  the  proprietors  of 
South  Boston  bridge. 

There  is  another  feature  of  the  act  of  1827,  which  may 
render  its  validity,  in  opposition  to  the  rights  of  the  proprietors 
of  Charles  river  bridge,  at  least  doubtful.  It  provides,  that  the 
bridge  shall  be  surrendered  to  and  become  the  property  of  the 
commonwealth  in  six  years  from  the  time  of  its  being  opened, 
or  sooner  if  before  that  time  the  proprietors  shall  have  been 
re-imbursed  the  expense  of  building  it,  with  interest  at  five  per 
cent.  The  real  effect  of  this  provision  is,  that  the  bridge 
is  built  for  the  commonwealth,  the  proprietors  merely  advancing 
the  expense,  which  is  to  be  repaid  out  of  the  tolls  collected. 
When  this  purpose  shall  be  answered,  the  bridge  becomes  pub¬ 
lic  property,  without  any  provision  for  any  toll,  so  that  unless 
some  further  act  of  legislation  takes  place,  it  will  be  a  free 
bridge.  Now  a  free  bridge  so  near  to  the  old  bridge,  it  must 
be  obvious  to  every  one,  will  entirely  destroy  all  beneficial  use 
of  the  franchise  to  the  proprietors  of  Charles  river  bridge. 
And  as  there  cannot  exist  a  public  necessity  to  give  free  pas¬ 
sage  to  all  people  from  Charlestown  to  Boston,  such  a  bridge 
cannot  but  be  a  violation  of  the  contract  with  those  proprietors ; 
which  certainly  is,  that  nothing  shall  be  done  by  the  govern¬ 
ment  to  impair  that  contract,  but  from  necessity. 

But  suppose  the  legislature  had  the  right  to  establish  a  free 
bridge,  deeming  it  to  be  for  the  public  interest  and  conven¬ 
ience  ;  then  it  seems  to  me,  that  such  a  measure  would  be  a 
virtual  assumption  of  the  franchise,  and,  without  compensation, 
would  be  void  on  the  principles  of  both  constitutions. 

On  the  other  hand,  suppose  the  toll  will  be  continued  as 
long  as  the  charter  of  the  old  bridge  endures  ;  then  if  it  shall 
be  paid  into  the  public  treasury  as  a  revenue  to  the  state,  this 

26 


202 


revenue  would  arise  from  the  very  act  which'  causes  the  loss  and 
injury  to  the  proprietors  of  Charles  river  bridge. 

"I  do  not,  however,  rest  my  opinion  on  this  extraordinary 

provision,  because  if  the  act  is  held  valid  on  the  other  grounds, 
this  may  be  cured  by  future  acts  of  legislation  ;  or  it  may  be 
the  subject  of  future  adjudication. 

I  think  this  question  of  the  necessity  of  indemnifying  the 
proprietors  of  Charles  river  bridge  has  been  prejudiced  by  the 
well  known  fact,  that  the  profits  of  the  bridge  have  been  great 
beyond  the  example  of  any  similar  institution  in  this  country.  It 
seems  torme  that  if  the  legislature  of  1787,  which  is  one  year 
after  the  building  of  the  bridge,  when  its  success  could  be  only 
conjectural,  and  the  experiment  of  its  durability  was  scarcely 
tried,  had  incorporated  this  company  to  build  the  Warren 
bridge,  without  indemnifying  the  proprietors  of  the  old  bridge, 
the  opinion  of  its  injustice  would  have  been  universal. 

I  cannot  see  that  the  principle  can  be  affected  by  any  change 
of  circumstances.  Every  thing  w.as  prospective,  and  forty 
years  at  first,  and  afterwards  seventy,  were  thought  to  be  a  rea¬ 
sonable  limitation  of  the  grant,  and  the  question  of  loss  and 
gain  on  both  sides  was  merged  in  this  compact. 

If  the  legislature  were  to  grant  a  township  of  land  without 
any  reservation,  at  ten  cents  per  acre,  and  the  purchaser  should, 
by  reason  of  a  sudden  settlement  of  the  surrounding  country, 
or  on  account  of  its  favourable  position  for  trade,  or  its  remark¬ 
able  commodiousness  for  mills,  find  it  was  worth  as  many  dol¬ 
lars,  the  most  ignorant  man  in  the  country  would  stare  if  the 
legislature  should  undertake  to  resume  or  curtail  its  grants. 

Besides-,  notwithstanding  the  original  proprietors  and  their  es¬ 
tates  may  have  been  vastly  more  than  indemnified,  it  is  to  be 
considered,  that  the  property  in  a  bridge  is  a  marketable  com¬ 
modity  ;  that  it  finds  its  money  value,  as  other  commodities 
do  ;  and  that  the  supposed  pledged  faith  of  the  government  in 
its  continuance  for  the  specified  time,  forms  an  essential  ingre¬ 
dient  in  the  value.  It  may  be  presumed,  therefore,  that  many 
of  the  present  holders  are  purchasers  at  a  price  which  will 
enable  them  to  obtain  nothing  more  than  the  common  rate  of 
merest.  A  deduction  of  two  thirds  of  the  value  of  the  capi- 


203 


tal  therefore  must  be  a  most  serious  injury.  And  then  again, 
probably  creditors  have  taken  it  at  the  market  price,  or  heirs 
have  taken  their  portions  and  lost  their  right  to  a  new  division  of 
the  estate.  All  will  see  then,  that  the  great  profits  which  have 
been  derived,  can  have  influence  upon  the  question  of  right. 

Bill  dismissed .* 


See  Enfield  Toll  Bridge  Co.  v.  Connecticut  River  Co.  7  Connect.  R.  28. 


) 


* 


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